A TREATISE OF The Antiquity, Authority, Uses And Jurisdiction of the Ancient Courts of LEET, or view of Franck-Pledge, and of Subordination of Government derived from the Institution of MOSES, the first Legislator: And the first imitation of him in this ISLAND OF Great BRITAIN, by KING Alfred, and continued ever since. Together with Additions and alterations of the Modern Laws and STATUTES inquirable at those COURTS, until this present Year, 1641. With a large Explication of the old OATH of Allegiance Annexed. LONDON, Printed by R. B. and are to be sold by G. Badger at the King's Head, in St. Paul's Churchyard. 1641. TO The Right Honourable, the Knights, Citizens and Burgesses Assembled in the Commons House of PARLIAMENT: And in that Numerous Assembly to the Worthy SPEAKER, His much Honoured, JOHN SELDEN, ESQUIRE, with the rest of the Learned long ROBE. THis Treatise of the most Ancient Court Leets (Right Honourable) contains in it the several Crimes and Offences there inquirable, as well by the Common Law as by divers Statutes, whereof many of this great Congregation had a Vote and interest in the making. It hath been the work of many intercisive hours, and had a whole winter-Age under the oversight of a judge, Sir Edward Coke. famous in his time, sometimes an Honourable member of former Parliaments. How it was entertained by him, and with what benediction it returned to the Author from him, is well known to a Gentleman yet living, his then Amanuensis. Since it pleased his late Majesty's Attorney general, upon a reference to him from his Sacred Majesty, dated December 1634. Tho. Tesdall Esquire. to recommend the examination of this work, and the Statutes therein cited to an able Counsellor, of Grays-inn, who after a deliberate perusal and consideration had of it, did at the end thereof Certify his opinion in these words. I have seriously perused this Tract concerning Court Leets, 13. july 1636. and find it to be compiled with much care and diligence; And I conceive generally well composed and useful to be published. Not long after this the Decree of the Star-Chamber intervening for limitation of the Press upon some strict terms, This little Creature had the happiness to be reserved for these long looked for times. The motive inducing the publishing of it is a threefold engagement of the Author. 1. Debitum reipublicae, a debt due from him to the Commonwealth, for expiation of the many lost and misspent hours of precious time. 2. It is debitum professionis, a debt of his calling or profession, wherein every man is but a Steward, and must render an account; He must not reponere talentum in sudario, but so order and improve it, that he may be enabled to cast, if not a Talon, yet a Mite into the Common Treasury. 3. * In Vita Aturedi. It is debitum promissionis in praelo, a debt of Promise and that in the Press. All legal promises, especially those which are publicly attested, are inviolably to be observed: Now the end of publishing it, is for the common good: For sithenoe the Leet is justly termed schola insigniendi juvenes, It is very necessary that the sons and servants of Farmers, Yeomen and others versed in rural affairs, should be disciplined in the Laws, under the government whereof they live and have their protection. And for their better instruction, I have in the rehearsal of the several Statutes declared the pains and penalties, for the benefit of persons who have not Statutes at large or abridgements. Reverend Master Crompton, in the Dedication of his justice of Peace, affirmeth that he thought fit to set down the penalties and punishments due to every offence mentioned in the charge contained in that book, in pursuance of the Order and method prosecuted by the Honourable, Sir Anthony Fitzharbert, in his treatise of that Subject, and in imitation of the usage and custom of the justices of Assize in their Circuits, deeming it necessary to inform the people as well of the punishment, as of the offence. And if parvis fas sit componere magna, I have presumed to take my pattern thence, that offenders may know the proportion of their pain as well as the quality of their crime. And now, right honourable, this treatise, together with the other annexed, the Author doth most submissively present unto this thrice Honourable Assembly, humbly imploring the vouchsafement of Your Honourable Licence and safe Conduct for those innocent Twins to pass cheerfully into the world; That they may be disposed and employed to that end for which they were compiled as Your Honours shall think fit. The God of all Counsel and Consolation be present and Precedent in all your religious Counsels and Consultations, and multiply his blessings upon this whole body, as well in all your public, as private affairs; For which the Author will never cease incessantly to pray. Rob. powel. The Table of the several Sections in the first part of this Treatise. THe Preface or Introduction touching the occasion, and Original of Laws. The first Institution of subordination by Moses. The first promulgation of Laws and the beginning of legal oaths for administration of justice. The first imitation of Moses in this Kingdom by King Alfred. The first division of this kingdom by King Alfred into Counties, Hundreds, and tithings. The appointment of Officers and making Laws for the better ordering of the Kingdom. The Statutes concerning the approvement of Wastes-Woods, etc. and other Laws derived from the Law of Alfred, cited by Mr. Cambden. The manner of proceeding by juries in those subordinate Courts of Counties, Hundreds, etc. All subordinate justice derived from the King and Crown. The most principal uses of Court Leet stand upon three points. The oath of Legiance ministered at those meetings first instituted by King Arthur. Three things considerable in the keeping of Turns and Leets 1. Time, 2. Place. 3. Persons. To answer an objection for the time, that all Leets are not kept infra mensem after Easter and Michaelmas. In what cases and by what means a Leet or franchise may be seized or forfeited or the Lord damnified. A direction for Lords in choosing their Stewards. The properties and qualities which a Steward ought to have. The authority of a Steward in Leets. A Steward's power to impose a reasonable fyne, And such fyne is not afferable nor traversable. The remedies for recovery of fynes and amerciaments in a Leet. Certain cautions in the taking of distresses. The last act or period of proceed in a Court Leet is Afferement. The ministerial part of a Court Leet in the levying of fynes and amerciaments assessed. A special caution for Lords of Leets against the farming out of their perquisites. THE Antiquity, Authority, Uses and jurisdiction of Court Leets, or view of Frank pledge, etc. The Preface or Introduction, touching the occasion and original of Laws. WHilst man stood in the state of Innocency, There was no sin, and so no need of any written or positive Law, no need of Oaths for the administation of Law; For in the first age & in a long time after the deluge, there was no oath heard of. In the second age of the world, As there was confusion of languages; So there was of all other things; All things were in common: No distinctions of Dominions, Possessions, & Inheritances by partitions, Virgil. Geo. 1 Lots and boundaries; Nesignare quidem, aut partiri limit Campum, Fas erat& Hence Confusion bred Contention, and might controlled right: Nimrod then began to be a mighty one in the earth, He was a mighty hunter before the Lord, and was the first Monarch, who usurped power without laws. From this confused generation God calleth Abraham and gives him this charge, Get. cap. 12. v. 1.24. Get thee out of thy Country, and from thy kindred, and from thy father's house unto a land that I will show thee, And I will bless thee, and make thy name great, And thou shalt be a blessing &c,: So Abraham departed as the Lord had spoken unto him, And Lot went with him. They had not long dwelled together buetheir substance increased and the land was not able to bear them; As riches increased so the right of property, or meum et tuum began to be narrowly pried into, and hath since begotten all civil differences, and consequently all civil laws for discussing and deciding of differences between man and man. There was civil dissension between the herdsmen of Abraham and Lot, and certainly it was about their substance. To redress this growing mischief Abraham bethinks himself of a partition. And to prevent a division of mind, descends to a division of means. And (though Uncle unto, and elder than Let) gins to stoop first in this wise. Let there he no strife I pray thee between thee and me, and between thy herdsmen and my herdsmen, for we are brethren, is not the whole land before thee? Separate thyself I pray thee from me, etc. And Abraham gave Lot the benefit of election of the land, to take either the right hand or the left hand; which was an example of division of possessions and distinguishing right of property for future ages. As God had promised to Abraham, that His seed should be in number as the stars of Heaven; so did his generations increase and multiply; With multiplications of families, Sins and Iniquities were also in abundance multiplied: All sorts of people both good and bad grew up together: Force and Fraud enlarged their dominions; Esau was a cunning hunter, a man of the field, And jacob was a plain man, dwelling in Tents. jacob had joseph a good son, And so he had his Simeon & Levi who troubled him, Gen. 34. instruments of cruelty in their habitations, Gen. ca 49. joseph had one Reuben to his brother, But all the rest envied, hated him, and conspired against him. At length jacob and joseph in fullness of years die. From the tribe of Levi Moses is raised, and preserved in an Ark of Bulrushes from the tyranny of Pharaoh, to be a Lawgiver, a Prophet, and a chief Ruler amongst the children of Israel, Prudentissimus Legislator, justissimus Princeps, ac Propheta maximus. In the mean time the Isralites do grieviously suffer under the tyrannical oppressions and impositions of Pharaoh; and Moses is sent with the assistance of Aaron to deliver them; After whose miraculous deliverance by the overthrow of Pharaoh and his host in the red sea, Moses and the Israelites having sung praises unto God, & erected an Altar in memorial of their blessed deliverance, Moses disposeth himself to a settled government of the people, And he sat to judge, And the people stood by Moses from the morning to the evening. The first Institution and Subordination by Moses. IN this course of judicature Moses was much ●●combred, and overcharged with variety, and multitude of causes; which jethro his father in law observing, doth gently admonish him in this wise, The thing that thou dost do, is not good, Thou wilt surely wear away both thou, and this people that is with thee, thou art not able to perform it of thyself alone. And then doth Counsel him for the ease of himself and the people to elect subordinate officers. Thou shalt provide out of all the people able men, Such as fear God, Exod. 18.2. men of truth, hating covetousnesse, And place such over them, to be rulers over thousands, of hundreds, of fifties, of ten, And let them judge the people at all seasons, etc. In pursuit of this grave advice, Moses accordingly did choose able men out of all Israel, and made them heads over the people, rulers over thousands, rulers over hundreds, rulers over fifties, & rulers oftens, & they judged the people at all seasons; the hard causes they brought unto Moses; but every small matter they judged themselves. Thus (Moses upon consultation with God having performed and put this holy Counsel in practice) His incomprehensible Deity vouchsafed the honouring of Moses with his own presence upon Mount Sinai, And therewith His immediate voice proclaimed the mora. Law, Containing all the grounds of Equity and justice, and gave them unto him engraven in two tables of stone. The first promulgation of Laws, and the beginning of Legal Oaths for administration of justice. AS Moses received them from God, so in discharge of his sacred function, he faithfully enjoined them unto the people. And as falsehood and fraud increased, So for avoiding and discovery thereof, and for true execution of justice, Heb. 6.16. As also to put an end to strife and controversy, The ministration of legal Oaths began to grow in use. And not long after the receiving of the Decalogue by that great Prince and Prophet. It was one of his first Laws given in charge unto the people. If a man deliver unto his neighbour an Asse●or an Ox, or a Sheep, or any beast to keep, And it die, or be hurt, or be driven away no man seeing it, Then shall an Oath of the Lord be between them both, that he hath not put his hand to his neighbour's goods, and the owner of it shall accept thereof, etc. By this it is evident, that Moses from God's mouth, and by inspiration of his holy Spirit, was the first personal Legislator in the world, and the first distributer of justice by subordination of Rulers and Magistrates, and the only pattern for all succeeding Princes; which moved Eusebius to say A Deo igitur Lex originem habet, Et eam mortalium omnium primus Moses Hebraeis constituit, Quae caeteris deinceps hominibus condendarum Legum haùd dubiò exemplar fuit. The first imitation of Moses in this Kingdom by King Alfred. THat Moses was a Pattern and Exemplar of making laws and managing of them by inferior Ministers, in this our ancient and famous Island of Great Britain, renowned in the constant succession and preservation of her laws, notwithstanding the permutation and change of government by the Conquest, and rule of several nations, may manifestly appear by that which follows. King Alfred who began to reign in this Island, Anno Christi. 872. the best lettered Prince that was in those times, began his laws with Locutus est Dominus ad Mosem hos sermons, dicens, Ego sum Dominus Deus tuus, etc. And so recites the 10. Commandments given by Almighty God upon Mount Sinai. And then proceeds with the most material laws mentioned in the 21.22, and 23, Chap. of Exodus. which he thought to be most apt and compatible for the government of his kingdom, closing it up with: Haec easunt jura, quae rerum omnium praepotens Deus ipse Mosi custodienda proposuit, etc. And then concludes with, Has ego Aluredus Rex Sanctiones in unum collegi, a●que easdem literis mandavi, Quarum bonam certe partem Majores nostri religiosè coluerunt; Multa etiam mihi digna v. dentur, quae a nobis hac etiam aetate pari religione obscrventur, Nonnullatamen torum ex consulto Patrum, partim antiquanda, partim renovanda curavimus, etc. I King Alfred have collected these laws into one body and have caused them to be written, whereof truly a good part, our Ancestors did religiously regard or obey: And many of them do seem worthy unto me, That they should be with the like religion in this age or time observed, yet some of them by the advice of our grave men (our Fathers) we have taken care partly to antiquate, and partly to revive or renew. Which in the language of succeeding times, was as much, as if he had said, Some of them by the advice of our Parliament we have thought good partly to repeal, and partly to coptinue. After this, the good young King (doubtless Non sine consulto Patrum) doth proceed, and culles out and confirms certain laws and sanctions of King Inas, Offa the King of the Mercians, and Ethelbert the first King that ever received Baptism here in England. The first division of this kingdom by Alfred into Counties, Hundreds and tithings. THis blessed Prince (the division of his kingdom being confounded by means of the then late distracted Heptarchy) having made league with Guthrunus the Dane, and thereby possessed himself of the entierty of the Realm, and being sole Monarch thereof, did (in imitation of jethro his Counsel to Moses) subdivide and distribute the government of the land into several parts; And did first reduce it into Satrapias' which we now call shires or Counties, Centurias now called hundreds, Decurias now lalled tithings, which at that time, in the infancy of of this sub rdination, consisted only often men But in succeeding ages grew more populous, and are not confined in number of persons, though it still retain the same appellation: Of those ten persons, proscribed to their decurie, or tithings, Every one was to be a fidejussor or pledge, one for another; And if any one received loss, the rest were to make recompense for it. Hence it was that nine of them were called ingenui fidejussores, which we in the title of our Leets call Franciplegii: And the Tenth was called Decurio, which continues in the west-terne parts by the name of tething man, in other places called vadem primarium et praecipium, in Kent called Borsholder (that is to say) a chief pledge, in Yorkshire called Tenteutale. The appointment of Officers and making Laws for the better ordering of the Kingdom. THis mirror of Princes having thus ordered his Kingdom, did set over every Shire a Senator and a Greve, which the Normans afterwards called Comes, and Vicecomes, and our later ages, an Earl, and Sheriff; Over every Century, an officer called a Constable, and every Decury, a chief pledge, or tethingman. And did decree, that every man of free condition (liber homo.) should be of a certain Handred or Tything, out of which he was not to remove without security. After he had thus ordained a law for the local settling of his Subjects, that they might be known, and called to account by the certainty of their abode upon all occasions of suspicion, or accusation for any crime or misdemeanour. Then he provided good and wholesome laws, for the better avoiding of rapines, thefts, murders, or any crimes whatsoever, as also for the securing of the persons and estates of his Subjects, and for the better rule and government of them in the place of their resiance: amongst which I find one Law cited by that noble and ever memorable Antiquary, Cambd. 〈◊〉 fo. 57 Quod si quis delicti alicujus insimularetur, statim ex centuria & decima exhiberet, qui eum vadarentur● Sin istiusmodi vadem non repereret, legum severitatem horreret; Si quis verò reus, ante vadationem, velpost transfugeret; Omnes ex Centuria, & decima, Regis mulctam incurrerent, If a man were accused of any offence, he should presently out of the Hundred and tything tender such as should be pledges or bail for him, but if he could not find such bail, he should then dread the severity of the Law (which I conceive to be according to the modern law, Imprisonment) But if any person accused, either before pledges, or after should fly away, all the men and inhabitants of the tithing and hundred should incur the King's mulct, that is, be amerced, to be in misericordiam Regis at the King's mercy. The fruit and effect of this law is worth observation, what good redounded to the Common weal in those times, For saith the Author, Hoc commento pacem infudit provinciae, ut per publicos aggeres, ubi semitae per quadrivium finduntur, armillas aureas juberet suspendi, Quae viantium aviditatem rideret, dum non esset, qui eas abriperet, By this devise he made such peace in the whole Country, that he caused certain golden bracelets to be hanged upon public batches or hillocks at every cross way, which might, as it were, deride the aviditie of passengers, since there were none that durst take them away. It is no doubt, but this Law or Ordinance doth not only in part retain a vigour and being at the common Law, but hath given light to many statutes to win force of great consequence. As, to that, of the Statute of Winton, 23 Adward 1. inquirable at Leets, by which it was enacted, That cries should be solemnly made in all Counties, Hundreds, Markets, Fairs, and all other places where great resort of people is, so that none should excuse himself of ignorance, that from thence forth every country be so well kept, that immediately upon such robberies, and felonies committed, fresh suit be made from town to town, and from country to country, etc. And after that the felony or robbery be done, the country shall have no longer space than forty days, within which it shall behoove them to agree for the robbery or offence, or else that they will ans wer for the bodies of the offenders. But albeit the Statute be general and no mention made whether the robbery be committed in the day time or in the night, Co. lib. r fo. 6. Ashpoles Case. the Hundred shall not be liable, but where the robbery or felony is committed in the day time, yet if divers do commit a robbery, those of the Hundred ought to apprehend all the felons, for though they apprehend some of them, yet that will not suffice to excuse them, unless they apprehend all of them by that Statute of 13. Edw. 1. But now it is qualified in that point, by the Statute of 27. Eliz. cap. 13. By which if any of the Inhabitants of any town, village, or hamlet next to the place where the robbery was done, do in their pursuit apprehend any of the offenders, that shall excuse them, though all be not taken. The Statutes concerning the approvement of wastes, woods, etc. and other Laws derived from the Law of Alfred, cited by M. Cambden. FRom that Law of King Alfred, the Statute of 13. Edw. 1. cap. 46. concerning approvements of Wastes, Woods, and Pastures, may seem to borrow its light, whereby it is provided, that if any having right to approve, do levy a Dike or an Hedge, and some by night, or at any other season, when they suppose not to be espied, do overthrow the Hedge or Dike, and men of the towns near, will not indict such as be guilty of the fact, The towns near adjoining shall be distrained to levy the Dike or Hedge at their own costs, and to yield damages. At the Common Law, if one be slain in any town in the day time, so long as it is plain day light, and the man-killer doth escape, the town where the Felony was committed, shall be amerced for it, Dum quis felonicè occisus fuit per diem, nisi felo captus fuit, tota villata illa oneretur. This I thought pertinent to my present discourse, to parallel that ancient Law of Omnes ex centuria & decima Regis mulctam incurrerent, with our latter Laws, whereby towneships are onerable upon the escape, or not apprehending of offenders in certain cases. Besides that good and profitable Law, amongst many others, that gracious Prince did further decree, that the Decurio or Tything man might judge of small matters, and the Centurio or Constable of greater matters, and at the fiequent meetings in every satrapy, or Shire (now called County Courts) the Senator or Greve was to hear and determine matters, of greatest difficulty and moment. King Edward sen. succeeded who made a law De diebus cogendi populi, Edw. sen. An. 900 Lamb. fo. 51. that every Greve & Praepositus quisque, should every month call the people together, do every man right, and decide all controversies, which confirmed the use of the County Court. King Edgar made a law De Comitiis, Centuriae Comitiis quilibet interesto, That is to say, Edgar. Anno 599. let every man be present at the Leets or meetings of Hundreds, but out of every shire, let there be a more famous meeting twice a year, Celeberrimus autem bis quotannis Conventus agitor, and this is now the Sheriff's turn. This King did farther decree, Lamb. fo. 80. that each person should find pledges who might bring him forth to render every man his own. Quisque fidejussores, qui eum jus suum cuique tribuere, quam paratissimum praestent adhibeto. The manner of proceeding by Juries in those subordinate Courts of Counties, Hundreds, etc. NOw the manner of proceeding at that time in those meetings, called Centuriae Comitiis, & Satrapiae Comitiis, (now called Court Leets and Sheriffs turns) doth appear by a Law practised in those days, and after revived by King Etheldred, who lived Anno 979. which thus ensueth, In singulis Centuriis Comitia Sunto, at que liberae conditionis viri duodeni aetate superiores, Lamb. Expel. verbo. unâ cum Praeposito sacra tenentes, juranto se non innocentem damnaturos, sontémve absoluturos. Let there be meetings in every Hundred, and let twelve freemen of the better sort, together with the chief pledge, swear upon the holy Evangelist, not to condemn the innocent, nor to acquit the nocent, that is, to do every man right. I will pass over many good laws before the Conquest, let us cast our eyes a little nearer, and see how the Counsel of jethro to Moses hath been since pursued. Bracton a learned and famous Common Lawyer, who wrote in the time of Hen. 3. from the Conquest, writes of the practice and duties of Kings, Rex & non alius debet judicare, etc. Bract. l. 2. cap. 2. The King and none else ought to judge, if he alone be able to do it, since he is bound thereto by virtue of his oath, and there fore the King ought to exercise the power of law as God's Vicegerent, and minister on earth, Sin autem Dominus Rex ad singulas causas determinandas non sufficiat, etc. But if the King be not able to determine all causes, that his labour may be the easier, in plures personas partito onere, eligere debet de regno suo viros sapientes, & timentes Deum, in quibus sit veritas eloquiorum & qui oderunt avaritiam, quae inducit cupiditatem: Et ex illis constituere justiciarios, vicecomites & alios ministros & ballivos suos, ad quos referantur tam quaestiones super dub●is, quam querimoniae super injuriis, etc. He ought to choose out of his Kingdom wise men fearing God and hating covetousness, and out of them to appoint Justices, Sheriffs and other Ministers to decide questions of doubt, and to redress injuries, etc. All subordinate Justice derived from the King and Crown. IN a cause of Replevin upon a distress for an Amerciament in a Leet, 12 Hen ●. 18 Fineux then chief Justice in his grave and learned argument affirms, That at the first, the administration of justice was in one hand, and in the Crown, and then afterwards by reason of the multitude of people, the administration of justice was divided into Counties, and the power was committed to a depatie in every County, that is to say a Sheriff, who was Bailiff and Deputy to the King, and was assigned for conservation of the peace, and to punish offenders, and to defend the Realm upon invasion of enemies, to be attendant upon the King in times of war, and to cause all his people within his County to go with him for defence of his land, and for the better government of the County, and correction of offenders. There were two Courts assigned to him (viz.) the County Court (held every month) and the Sheriff's turn, held twice every year, by which two Courts, the whole County was governed: the County Court was for one man to have remedy against another, for any thing between them under 40. shillings, And the Sheriff's turn; unto which every man within the County of a certain age, should come, and were compelled to come, that they might not be ignorant of the things there published (or given in charge) whereby they were to be governed; and this was called Suit Real, by reason of their allegiance; unto which they were sworn to be true and faithful to the King, etc. Afterwards it seemed to be too great a thing for the Sheriff to perform all in his own person, whereupon Hundreds were ordained, and divided out of the Counties, and in every Hundred was appointed a Conservator of the peace, called a Constable; and after, Boroughs were made and ordained, and within every of them a petty Constable, and in some places a Boroughead according to the diversity of the languag, for that this land had been inhabited by persons of divers Nations, as Britanes, Saxons, Danes, and Normans, So that, the diversity of terms and appellations came by the diversity of Languages, That the Hundreds and Boroughes did resort unto the Turns, by reason of their allegiance, And the Constables, and petty Constables, did there present the defaults of offenders, but afterwards upon consideration had of the great trouble, which the people sustained in travelling to the Sheriffs Turn, Leets or View of Franckpledge were granted unto Lords of Manors, within certain precincts, to reform all manner of defaults there. By all which it is plain, that Leets had their derivation both in nature and power out of the Sheriffs Turn, and were purchased for the ease of the people by divers Lords; Boulogne's Case, Co. li. 7. fo. 78. And in divers places, there is a duty or sum of money payable to the Lord of the Leet, by custom, in regard he purchased the same, for the ease of the resiants and inhabitants, to free them from their attendance at the Sheriffs Turn, and also in regard the Lord of the Leet was at every coming of the justices in Eyre at his own costs to claim his liberty, which duty is sometimes called Capitagium, sometimes Certum Letae, and so by other names according to the Custom of several places: So that now by the example of Moses the pattern and precedent of all Princes and judges, the particular imitation of K. Alfred, and by the practice of times, ever since, it is most evident that the justice of a kingdom cannot be circumscribed within the compass of a Crown, but must receive execution by subordinate officers & ministers, & consequently there have been and must be subordinate courts of judicature, and justice, for the ease both of Sovereign & subject, amongst which, the leet or view of Fanckpledge hath been and is of most special use. The most principal uses of this Court, do stand upon these three points. 1. To take view of all Franckpledges or Freemen, and by inquisition or examination to discover, whether every person of the age of 12. years and upwards have a free pledge, or fidejussor, that they shall keep the King's peace, which, with our Ancestors was in great use and esteem, but now by desuetude of time is utterly antiquated, and only care taken by presentments of jurors and Officers upon their oaths, to find out and punish several delicts and offences perpetrated within the view and precincts of the Leet, proper for the jurisdiction of that Court. 2 To elect and swear all officers and ministers of justice, who are to attend the service of that meeting, as Constables Tethingmen, and such others, wherein the Steward must be very circumspect and careful of the idoniety of them, that they be persons of honesty to execute their office truly without malice, affection, or partiality. 2. Science, to know what belongs to their place, and what they ought only to do. 3. Ability, aswel in estate of body that they may diligently attend & execute their office upon any occasion, and not be negligent or remiss, either for impotency of body, or indigence in estate. 3. The third and principal use, which is indeed now most in use, s to take all Suit royal, that is, every person born within the king's dominions, is a liege subject, and oweth natural legiance, and all male persons of 12. years old, aught to take an oath for the demonstration of their natural legiance, which is called legal, because the municipal laws have prescribed the order and form of it to be done at the leets and tourns, and this natural legiance is absolute, pure & indefinite, & is originally due by nature & birthright, & is called alta ligeantia, & he that oweth this is called subditus natus. The oath is described by Britton c. 29. titulo, who wrote in the first year of Edw. 1. the effect whereof is, You shall swear, that from this day forward you shall be true and faithful to our Sovereign Lord the King and his heirs, and truth and faith shall bear of life, and member, and terrene honour, And you shall neither know, nor hear of any ill or damage intended unto him, that you shall not defend; So help you God. If antiquity do make things more venerable, as most commonly it doth, this oath of natural legiance at the turn and leet can plead as large prescription of its ancient and constant usage as any one thing in this nation, for it was first instituted by K. Arthur, at which time the Leet was called Folkmote, viz. a meeting of the people, and this appellation is retained in London to this day. Amongst the Laws of King Edward the second before the Conquest, Lamb. fo. 135.136. it it thus expressed. Omnes Principes & Comites proceres, milites & lib. homines debent jurare, etc. in Folkmote, & similiter om●es proceres regni, milites & lib. homines universi totius regni Britanniae facere debent in pleno Folkmote sidelitatem Domino Regi. etc. Hanc Legem invenit Arthurus, qui quondam fuit inclytissimus Rex Britonum, etc. Hujus legis authoritate expulit Arthurus Rex Saracenos & inimicos a regno, etc. Three things considerable in the keeping of Turns and Leetes, 1. Time, 2. Place, 3. Persons. THus fare you see the Antiquity of this Court, and the ancient and natural privileges incident unto that. There be three things or circumstances, considerable in the keeping of it, 1. Time, 2. Place, 3. Persons. In ancient time the keeping of it was arbitrary, at the pleasure of the Lord, until by the great Charter it was restrained to be kept twice a year. Non aliquis Vicecomes vel ballivus suus faciat turnum suum per hundredum, Mag. 〈…〉 ea. 35. nisi bis in anno: Et non nisi in loco debito et consueto, viz. semel post pascha et iterum post festum sancti Michaelis, et visus de franci plegio tunc fiat ad illum terminum Sancti Michaelis sine occasione. Fiat autem visus de franciplegio sic, viz. quod pax nostra teneatur, et quod tithring a teneatur integra sicut esse consuevit, etc. Notwithstanding which restraint, divers Sheriffs did afterwards make their Turns oftentimes in Lent, when men ought to intent devotion and other works of charity for remedy of their souls, and sometimes after the gule of Harvest, when every man almost was busied about the cutting and carrying of his Corre, Ploughed. fo. 316. b. The Calends of Aug. or the feast of S. Peter ad vincula. 31. Edward 3. ca 15. whereby the people were much grieved and disquieted. King Edward the third, upon the grievious complaint of his Commons, desiring the quietness of his people, did ordain and establish, that every Sheriff from thenceforth should make his Turn yearly, one time within the month after Easter, and another time within the month after Saint Michael, and if they held them in other manner, that then they should lose their Turn for the time. As it was restrained in time, 2 Place. So it was to place and persons, it must be kept within the precinct and liberty in loco debito et consueto, If it be holden otherwise, it is coram nonjudice; And the matter of cognizance must be within the view. For 41. Edward 3. fo. 31. Kyrton citys a Case, wherein the Lord avowed the taking of an amerciament for the stopping of an Highway, which in rei veritate was out of the jurisdiction of the view, and therefore the Plaintiff recovered damages. If the Sheriff shall keep his Turn, in loco in consueto, he may be indicted and punished for it. 3 Persons. Dyer 151. As for the persons. Although in the time of King Arthur, Omnes Proceres, Comites, Barones, &c. were to swear and do their suit real, in pleno Folkmote, yet by the Statute of Marlebridge, Marl ca 11. it is thus provided by way of restraint, De turnie vicec: provisum est, quod necesse non habeant ibi venire Archiep scopi, Episcopi, Abbates, Priores, Comites, Barones, nec aliqui viri religiosi, seu mulieres, nisi corum praesentia ob aliam causam specialiter exigatur, etc. So by this Statute, All clergy and religious men, All Earls, Barons and all women are excepted and exempted, and by the law all other people under the age of 12. years, their presence being not necessary there, in regard they are never sworn upon any inquests; But all freeholders, terrtennants and other persons inhabiting within the precincts of the Leet, aught to appear and do their suit, and tenants in ancient demesne, are not bound to come to the Sheriffs Turn, and consequently not to any Leet. If any of the said persons mentioned to be exempted, Fitz●, na. Bre. f. 158.161. or if any in wardship to the King should be distreyned to do their fuite, the law hath provided several forms of writs, De exoneratione sectae, for discharge of every of them. Whatsoever the law prescribes or restreines in the Sheriffs Turn, Broo. Leet, 26 22 Edw. 4 22. the same is binding in a Court Leet, and it was agreed for law that the power of a Sheriffein the Town, and a Steward in the Leet were all one: only the Leet have power to inquire and take presentments of nuisances and offences aswell in the Courts after the feast of Easter, as after the feast of S. Michael, Fitz●. Leet 11 whereas the Sheriff in his Turn after Easter ought not to inquire of any action popular, etc. but only to take suit of the resiants and other suitors, and to take the view, quod trithinga teneantur, scilicet. That all above the age of 12. years come, and appear there to do their suit, and to take the oath of Legiance, if they were not sworn before. For after a person is once juratus in decennaria or ad fidem & legeanciam Domini Regis, he is not compellable to be sworn again. As a Leet is derived by grant from the crown, Forseiture of a Leet. so, by divers causes that may be seized into the King's hands, and return to the Crown again, and if for any just cause it be forfeited and seized, then must the resiants and suitors again attend and do their suit at the Sheriffs Turn, and what is omitted in the Turn might be presented in the King's bench, for in the case of john Charneles, Edward the third, Belknappe sets forth the law to be, that if a thing were not presented within the Lords view, than it should be presented in the Sheriffs Turn, and for default there, it should be presented in the King's Bench when the King came into the country, by which it plainly appears as before is expressed; that the justice of the Kingdom was at first wholly in the hands of the King and immediately derived from his person to Subaltern Officers. To answer one Objection for the time, that all Leets are not kept strictly infra mensem after Easter and Michaelmas. Where there are ancient Customary Courts of Tenants in ancient demesne, or such like, that were ever exempted from the Sheriffs Turn, and the Lords of such lands had their own Turns, that of Easter being called Turnus de Hockday, and that of Michaelmas, Turnus Sancti Martini, as in the Bishopric of Winton and other places, those Courts are left to their Arbitrary keeping, either before or after the month, or at other set times, according to their ancient respective Customs, and not restrained by any Statute. Britton the tenor of whose learned work runneth in the King's name, Edward 1. as if it had been penned by himself, answerable to justinian's Institutes, doth there in the first salutation of the King's subjects, with Edwardus Dei gratia, etc. set forth, That because his peace could not well have its being without Law, he caused the Laws then used in this Realm to be put in writing, and did thereby command a strict observation thereof in all things, Saving a power to repeal, altar, and amend, all such things as should seem meet unto him, with the advice of his Earls, Barons, and others of his Council, and saving all customs unto those, as by prescription, used the same time out of mind, so as those usages were not discordant unto right. At that time being 5. Edward 1. those ancient customary Turns, within many particular Lordships were in use, not subject to the Sheriffs Turns, and so not within the meaning of the Statute of 31. Edward 3. cap. 15. which being made long after, extendeth not to any Leets, but such as were and are derived out of the Sheriffs Turn, and so it was admitted by the judges, that the Leet of another Lord was not within the Statute, but the Leet of the Turn. Brook Leet 21.6 Hen. 7.2. And so by necessary consequence, All Leetes derived out of the Sheriffs Turn, and no other. In what Cases, and by what means a Leete or Franchise may be seized or forfeited, or the Lord damnified. IN all grants of any Liberties, or Franchises there are commonly two conditions, one in facto, which is always explicit, as to pay money, or to do, or not to do any other act, etc. 2. Condition in league, which is , and implicit created by law. There are two sorts of conditions in Law, by the rule of the common Law, 1. The one which is founded upon a Confidence and skill, 2. The other without either of these. There be 3. causes arising from the violation of trust or confidence, and want or privation of skill, which induce a forfeiture aswell of offices, as of franch ses (that is to say) 1. Abuser, 2. Non user, 3. Refuser, All which I will but summarily touch, and they may all three proceed, 1. Either from ignorance, 2. Or from wilfulness. Abuser. It is said by M. Kitchen, that Court Leets are to be forfeited in quo warrant, which are kept by ignorant Stewards. Some make a doubt of it. In Offices which concern the mere and only private profit of the Lord without damage to the weal public, the ignorance of a Steward can be no cause of schism, but in Offices concerning administration of justice, pro bono publico, as a Leet, there is no doubt, but the Franchise may be forfeited. The Steward of thelibertie of the Abbot of Crowland, Crompt. jur. so. 145. by colour of his liberty of Infang-theefe adjudged a man to death, and for this the liberty was seized in the King's hands, Et nulla poena Senescallo, For Quicquid justicia fecerit de Recordo ignoranter & pro defect. scientiae, non erit proeopunitus. 2 Ric. 3. fo. 10. A Lord of a Leet was fined forty shillings, for that his Steward took an indictment de morte de home, in his Leet, which did not belong unto it, and so encroached upon the King. And also took an indictment of a robbery done out of his franchise in another County. Brook in finibus pur contempt. 49. citys 41. ass. p. 30. If the Lord do hold his Leet at any time after the month from Easter and Michaelmas, it is void by the Statute of 31. E. 3.15. and all presentments void, and the Lord shall lose his profits. Brook, Leet 17. and 21. Non user. Assize of Bread and Beer, and pillory, and tumbril are appendent to the view of Franck-pledge, where a man hath them by a grant from the King, if he doth not keep pillory and tumbril he loseth his office, Brook, Quowar. 8. Refuser. The Abbot of S. Albon having the grant of a Gaol, detained the prisoners, for that he would not be at the charge to sue out a Commission for their delivery, the King seized the Franchise into his hands, 8. Hen. 4.18. A direction for Lords in choosing of their Stewards. Since the jurisdiction of this ancient Court is liable upon just cause of for feiture, and seizure into the King's hands, it is necessary that Lords of liberties, as well for prevention of their own inconvenience, as for the better government of the Country by due execution of the Law, should select, choose and appoint out of men treyned up in the studies of the provincial Laws of this kingdom, such, as must have the four properties of jethro his counsel, Able men, such as must be viri potentes, not in strength of body, but in courage of mind. 2. They must be viri timentes Deum, that fear God and not the faces of men; he that hath this virtue wants none, and he that wants this is open to injustice, oppression, malice, and all other enormous impieties. 3. They must be Amantes veritatem, it is S. Paul's counsel, Ephes. 6.14. Stand therefore, and your loins gird about with verity, and having on the breastplate of righteousness, etc. 4. They must be abhorrentes avaritiam, the root from whence all evils grow, 1 Tim. 6.10 That which (as Bracton saith) doth inducere cupiditatem, when Samuel his sons were judges over Israel, it was a brand upon them, They walked not in his ways, but turned aside after lucre, and took rewards, and perverted judgement, 1 Sam. 8.3. The properties and qualities which a Steward ought to have. F Let a describes the office of a Steward, and giveth counsel unto Lords of Manors, and liberties, to provide (or elect) their Stewards in these words, Provideat sibi Dominus de senescallo circumspecto, & fideli, viro provido, & discreto & gratioso, humili, pudico, pacifico & modesto, qui in legibus consuetudin busque provinciae & officio senescaleiae se cognoscat, & jura Domini sui in omnibus teneri affectet, quique subballivos Domini in suis erroribus & ambiguis sciat instruere' & docere, quique egenis parcere, & qui nec prece vel pretio velit a justitiae tramite deviare & perverse judicare. Cujus Officium est Curias tenere Maneriorum & de substractationibus consuetudinum, servitiorum, reddituum, Sectarum ad curiam, mercata, molendina Domini, & advisus franciplegiorum aliariumque libertatum Domino pertinentium inquirat, etc. By which Description it is to be observed, that a Steward ought to have a double qualification, 1 In Moralibus. 2 In judicialibus, whereby he must be guided as well in the keeping of Court Barons for the profit of his Lord, as for the honour of him, in the government of Leets for the good of the Common weal. 1 In Moralibus, A Steward must be qualified with these properties before mentioned, circumspection, fidelity, providence, discretion, humility, peace, and modesty, which may be reduced into these two generals, S. verity, and Industry, the one proceeding from the heart, the other from the hand; his diligence or industry must be tempered, with 1 Circumspection, 2 Providence, 3 Discretion, otherwise it may incur the peril of temereity and precipitance, which commonly prove fatal in all actions. Canis festinans caecos parit catulos. His verity must be attended with fidelity, Co. l. 5. Epist. humility, peace, and modesty, Veritas secum ducit Comites simplicitatem, unitatem, & pacem tandem. 2. judicialibus; and therein he must be attended with four properties: 1 Scientia, he must know himself (or be expert) in the Laws and customs of his Country, and have ability to instruct or direct the Bailiffs and other ministers in dubious things, wherein they may err. 2. Misericordia, he must spare the poor, not rack poor tenants, nor grind their faces, he must not be outrageous in imposing excessive fines in the Leets, but (as judges in other Courts are, or aught to be) moderate and discreet, secundum quantitatem delicti, not beyond the dimension of the offence, for excessive amerciaments are against the law, Excessus in re qualibet jure communi reprobatur, Coo. li. 11. fo. 42. Mercy and truth must meet together, righteousness and peace must kiss each other, Psal. 85.10. 3 justitia: the Prince of virtues, the faithful Companion of this life, without which no humane society can subsist, justice knows no father, mother, nor brother; Persona non accipit sed Deum imitatur, A Steward must put on this Armour. And must neither be drawn by price nor prayer, neither by lucratotie corruption, nor any sinister affection, to deviate and wander out of the highway of justice, and judge perversely. Qui nec (as Bracton adviseth) ad dextram nec ad sinistram, vel propter prosperitatem terrenam, vel adversitatis metum a tramite justitiae declinent. 4 Fertitudine animi. He must not be daunted neither by threats nor fear, nor overswayed by the Landlord himself, either in the electing of officers (a thing too frequent) or in any other thing that may concern the due administration of his office. A Steward being thus endowed, adorned, and qualified with those moral and judicial virtues, and properties is the fit to undergo the burden of that authority, where with he is entrusted by the Laws of the Realm. From his qualities I will pass unto his authority. The Authority of a Steward in Leets. A Leet is a Court of Record, The Steward is judge, and hath a double power, 1. of election of officers, 2 of Coercion or punition of offenders; In the latter, viz punition, there is a double act to be respected, 1. Actus Curiae, 2. Actus Patriae, the act of the Court, and the Act of the jury or Country. These two do meet with two sorts of offences or misdemeanours by two sorts of remedies, 1 Fine, 2 Amerciament, the one sort of offences are Extra Curiam, the other in Curia. 1 Extra Curiam, Coili. 8 so. 38. Grisleys Case. of those which are extrinsecall offences, The jurors and officers sworn to present (who ought also to have the four properties of jethros counsel) have peculiar cognizance, and therefore power to present them, and to assess amerciaments for them. 2 In Curia, being the second sort, which are offences, either in omitting or neglecting a duty enjoined, and to be performed by Constables, Bailiffs, Jurors, or ministers of justice, or in committing some contempt and disorder in the face of the Court by any officer or suitor; The Steward hath cognizance, and may punish it by fine, without inquiry by the Country. 1 As if a Bailiff refuse in Court to execute his office, 7 H. 6.12 b. 2 Or if a Tethingman refuse to make a presentment in the Leete, 10. H. 6.7. 3 Or if any of the jury in a Leet departed without giving his verdict. 4 Or if any suitor or other person doth misdemeane himself either in word or deed. 5 Or if any inquest refuse to present in a Leet such defaults as they have information of, 10 Ed. 3. fo. 4. The Steward hath power in these and the like Cases, to impose a reasonable Fine, and such fyne is not affereable nor traversable, 10. H. 6. fo. 8. 6 He hath power by several Statutes in several cases, to impannell a second jury, to inquire of the defaults and concealments of the first jury, and to fine them for their offence. 7 A Steward may by paroll command a Bailiff to make distress. 16 H. 7 fo. 14. 8 In every Leete, the Lord of the liberty hath but the amerciaments, the Court is the Kings, and therefore the Steward doth represent the person of the King, 41 Edward 3 fo. 31. 9 A Steward for default of resiants may compel a Stranger coming within the view to be of the inquest. The remedies for recovery of Fynes and Amerciaments in a Leete. AS in a Leete there is a twofold remedy according to the nature and quality of the offences, viz. 1 Fine, 2 Amerciament: So there is in the Law, a twofold way or mean respectively to recover and obtain that remedy for the benefit of the Lord of the liberty. 1 Either by action of debt against the offenders fined by the Steward, or pained and amerced by the jury. 2 Or by distress of his or their goods or cattles in some cases upon their land, Bro. Leet 7. though the goods of another man, in other cases by distreining the offenders proper goods in any place within the precincts of the Leete. If a pain be imposed in a Leet upon any person for redressing or removing of a nuisance by a day, sub poena 10. lib. And the non fe sans thereof be afterwards presented, and the pain thereby becomes forfeited, this is a good presentment and the pain shall not be otherwise affered, and the Lord shall clearly have an action of debt, 23 H. 8. And the reason why such a pain is not afferable, is, For that the word (afferre) is as much as to say, to tax, or to assess, ponere in certitudinem, or taxare, and a pain for not doing, or not removing of a thing by a day, is, upon a presentment of a non fezance by a jury, an immediate taxation and a certitude of assessment by the Country, and therefore needs not further or otherwise poni in certitudinem. In the case of assessment of a fine by a Steward upon a tethingman, who would not present at a Leet. ●o Leet 36. The Lord may bring an action of debt, and if the Defendant tender the wager of Law, it was optima opinio that a wager of law did notlye in that case, for that the Leet was a court of Record, 10. H. 6.7. As in these and other pains and fynes of like nature in a Leet an action of debt doth lie, Co. li. 1. so. 42. so also for them, and for all amerciaments in a Leet, distress is incident of common right, that is, by the Common Law a Lord may destreyne the goods of the delinquent. In Grislies' case, Co. l. 8. so. 38. Trin. 30. Eliz. where doubt was made, whether a Lord of a liberty might distrain of common right, for a fine imposed in a Leete by a Steward for contempts and misdemeanours: It was resolved, that if for lesser things, S. for amerciaments of offences, extra curiam, distress was incident of common right, by an argument a fortiori, in a case of Fynes imposed for offences, committed in the same court distress shall be incident, For, Quod licitum est prominore, & pro majore licitum est, And nothing is more natural to be punished by a Court, than offences committed in the same Court. And it were a hard thing to drive a Lord to his action of debt for every petty fyne or pain, and in case the Lord do distrain, he may sell the distress, or put the same in pound at his pleasure. For the place of distress whether upon the offender's lands within the view, or upon his goods in any place within the precinct of the Leet may arise a question, which was resolved, 2 Hen. 4.24. Bro. Leet. 28. That for amerciaments in a Leet or Handred, a man may distrain the beasts of the offenders in any place within the precinct of the Leet or Hundred, and a fortiori (as is before) for fines and pains in a Leet. The Lord may distrain in the highway for an amerciament in the Leet, 34. Ed. 2.19. Edw. 2. Or the goods of the offender in the custody of another man, 47 Ed. 3 fo. 12. Krenebyes' case, And the reason for that the offence doth arise upon the person of the offender, and aught to be estreated upon his person, and not upon the issues of his lands, 41 Ed. 3.26. In some cases the distress may be of another man's goods upon the lands of the amercee, As if a man do hold lands of a Leet, by the service of Crier of the Court, or the like, and is amercied for neglecting of his service, A Lord may distrain the beasts of any other upon the land so holden, 47 Edward 3 folio 13.12 Henry 7.15. And the reason for that the offence doth arise ratione tenurae or soli, 41 Edward 3.26. Certain Cautions in the taking of Distresses. A Lord cannot distreyn for amerciament in a Leet in any lands seized in the King's hands for the King's debt, for that the place is privileged, and the right of distress suspended for that time, for as the King cannot be amercied, so by consequence his lands are out of the jurisdiction of a Leet, Bro. Leet. 8. and the distress tortuous, and so was the opinion of Finchden in the Case of Sudbury Bishop of London upon a Replevin inter Norwiche & Manley, 47 Edward 3.13. He cannot distrain the Horse of a stranger in the Stable or osterie of the party amercied, nor the garment of another in a Tailor's shop, where the Tailor is amercied, and so was the opinion of Keble, 10 Henry 7.21. If upon a distress taken the amerciament, fine, or other duty be tendered, and satisfaction offered, it ought to be accepted, Bro. Distress 8. and in case it be refused, and the distreynee put to a Replevin, the Lord shall not have return, For a distress is but a gage or pledge for a duty, which being offered, the Lord ought to deliver the gage. A Lord may not distrain a millstone, parcel of a mill, nor doors, nor windows, nor any thing that is fixed unto, or parcel of a freehold, 14 Henry 8.25. The distress ought not to be excessive, for excessive distress is forbidden by the common law, 41 Edward 3 folio 26. As for the amerciament of two shillings, or such like, to take two or three Horses, were outrageous and excessive. The last act or period of proceed in a Court Leete is afferment. AFferement is as much as ponere in certitudinem seu taxare, to assess or tax, derived from the French word; The Subject of this Act is called amerciament, in latin misericordia: and it is described by an ancient writer, Glanvill lib. 9 cap. 11, in this wise, Est autem misericordia Domini Regis quâ quis per juramentum legalium hominum de vicineto, eatenus amerciandus est, ne aliquid de suo honorabili contenemento amittat. And by the Statutes of Magna Charta, cap. 15, and Westm. 10.6. Liber homo non amercietur, etc. nisi per sacramentum parium suorum, viz. proborum & legalium hominum de vicineto, qui facultatum suarum noticiam habeant pleniorem, as it is recited by Fleta, lib. 1. cap. 48. That is, Amerciaments are to be assessed by the oath of equals, good and lawful men of the vicinage or neighbourhood, who have the better knowledge of the estate and abilities of the Amercees. The parties to this act are the Steward and the Country (or pares) And these pares or probi homines, are according to modern practice chosen at the Leet, out of the jury by the steward, to tax and afferre the amerciaments indifferently, not to wrong any for hatred, nor to spare any for favour, etc. which oath by Bracton lib. 3. cap. 1. fo. 116. is thus declared, Et ad hoc fideliter faciendum (speaking before, Ad hoc videndum qualiter quis sit amerciandus etc.) affidabunt amerciatores, quod neminem gravabunt per odium, nec alicui deferent propter amorem, Et quod celabunt ea quae audiverunt, 38 Edward 3 fo. 3.9. As if one be amercied upon a presentment in a Leete, for not repairing a bridge or a highway, The manner of entry up on the Court book and Rolls must be Ideo in mia. et amerciamentum inde afferatur per afferatores in eadem Curia ad tunc electos et juratos ad 20s. Rastall intrat, tit. trus in Amerciam. 2. So that the Steward cannot tax or afferre an amerciament upon the presentment of a jury, if he do, it is void in law, and lieth not against the party amerced, The Steward as only to record and enrol the Amerciaments afferred, and truly and justly to estreate them to the Bailiff of the Manor to be by him distreyned for and levied for the use and benefit of the Lord. This last Act of Taxation and recording thereof doth determine the judicial part of a Court leet, and after judgement must follow execution, wherein the life and vigour of all laws do depend. The ministerial part of a Court Leete in the levieing of fines and amerciaments assessed. THis part or act hath a double relation, 1 To the Lord, 2 To the Bailiff. The Court is the Kings, but the emergent profits formerly described by two remedies, S. 1 Fine, 2 Amerciament, belongs to the Lord, and for that they do arise out of offences, which concern the King and Common weal, the Lord is bound both in Law and conscience not to be too prone in remitting of them, especially in those cases which concern the King immediately as in his prerogative touching the oath of legiance, or immediately in regard of the Common wealth, whereof the King is caput et custos, as touching fines upon delinquent Officers and Ministers, Amerciaments in cases of common Barrators, Drunkards, false and double Weights and Measures, deceits and corruptions in Victuallers, Tradesmen, and Artificers, and such like enormous offences, which in their quality are exemplary, and have generally an interest in the public calamities of Church and State: As also in Amerciaments, for not repairing of Bridges, Causies, Highways, and many more of that nature hereafter ensuing in the second part of this Tract, which ratione communis nocumenti, deserve no manner of favour or indulgence. The best excuse that a Lord can plead for himself in such cases of remission of amerciaments, is but misericordia, And that excuse is taken away by a former act of mercy and moderation, in the afferors or equals, who being astrict by a solemn oath, quod neminem gravabunt, etc. That they should neither surcharge for hatred, nor detract or diminish for favour. The law presumes, That as they ought, so they did assess them mercifully, and after a solemn and judicial mercy, Non opus est extrajudiciali misericordia. 2 The second relation concerns the Bailiff, who must be true, faithful, and vigilant (observing the Cautions before prescribed) in levying of distresses, He must not be exoculated with common rural bribes, Bacon, Cheese, etc. as that he cannot see a jury man in his right place to return, nor any goods or catsell to distrain, his office is also de cubed by Fleta, lib. 2. ca 67. whereof so much may be applied, as doth accord with the practice of this age. Ballivus cujuscunque maneri esse debet in verbo verax, et in opere diligens et fidelis, Ac pro diserto appruatore cognitus, plegiatus et cler cousin, qui de communioribus legibus protanto officio sufficienter se cognoscat, Et quod sit ita justus, quod ob vindictam seu cupiditatem, non quaerat versus tenentes Domini nec alios, etc. A special caution for Lords of Leets, against the Farming out of their perquisites. BY the Stature of 4 Henry 4, cap. 5. the Sheriff is not to let to Farm his Bailie wick to any man for the time that he occupieth such office. By the Statute of 23 Henry 6, cap. 10, For the eschewing of extortion, perjury and oppression, it was (inter alia) enacted, That no Sheriff should let to farm in any manner his County, nor any of his Bailywicks, Hundreds, nor Wapentakes. These Statutes do extend only to Sheriffs and not to Lords of Leets and Manors, but as Leets and Hundred Courts had their derivation of authority from Sheriffs Turns and County Courts, So they had in process of time by example (which in evil actions is always a better mistress than in good) a derivation of their abuses, ●1 jac. and corruptions. This growing mischief, the wisdom of the Parliament, 1 jaco. well observing, and that Stewards of Leets, and Court Barons had in their own names, or in the names of some other to their use obtained and gotten divers grants of all the profits and perquisits of such Courts where of they were Stewards, out of a greedy desire of undue and extraordinary gain to themselves, whereby many of his Majesty's subjects were unjustly vexed, and by grievous fynes and amerciaments, unduly punished to their great wrong and impoverishment, did therefore restrain all Stewards, Deputy-stewards or Vnder-stewards, that they should not directly or indirectly, in their own names or in the name of any other, take, receive, or make benefit, to his or their own use, in money, goods, or any other thing to the value of 12. pence or more, by virtue or colour of any demise or grant then after to be made, of any the profits, perquisites or amerciaments of any such Courts whereof they were Stewards, upon pain to forfeit for every such offence 40 pound, and to be disabled for ever after to be Steward of such Court, or of any other. This Statute doth in the penalty point only at the Steward, and therefore I may be bold to free the Lord a poena, but I cannot a culpa, For doubtless, he is partiseps criminis, and as guilty of wronging and impoverishing the Tenants by the concession, as the Steward by the acceptation thereof. The law would not intrust a Lord to be judge in his own Courts, in regard the profits and perquisits were to accrue unto him, and therefore according to the rule of Fleta, Provideat sibi Dominus de Senescallo, etc. A Steward ought to be a man indifferent between the Lord and the law, being nominated and appointed to his place by the one, be it by word or writing, but credited and invested in authority by the other; He receives his name from the Lord, but his power and faculty from the law; He is called in latin Senescallus, a word of many significations, derived from the word Schale, an officer or governor, and Sen (as some would have it) an ancient word for justice. So as in this Case, he is officiarius justitiae, and therefore not fit to be a judge, and a pernor or proprietary of the perquisits of his judgement, the reason is sufficiently set down and illustrated in the Statute. Though Stewards only be by that act of 1 jaco. debarred from being farmours of amerciaments and perquisites, it is as dangerous and inconvenient, That the Lords Bailiff should be capable of any such grant (a thing now too common) for as the one may be too excessive and oppressious in imposing, So the other may be in distreyning. And if the Bailiff once get a power of dispensation of those things at a certain Farm, he may be partial and corrupt in returning of juries, and may assume the greater liberty and privilege to be remiss in that, and other services to the hindrance and prejudice of his Majesty's service in regard of his Farmeship of the profits, and by consequence of the fines which might be imposed on him, by the Steward for his wilful or negligent offence. The Second part of this Treatise, Which Contains, Subjectum visus Franciplegus, OR, The matters there inquirable, and presentable. HItherto I have only touched the Antiquity and Authority of Court Leets, and the first institution or derivation of that, and all other subordinate Courts of Justice. Not unaptly nor unnecessarily will follow, the useful handling of the Subject of the Court Leet, or the matters and misdemeanours whereof that Court doth challenge peculiar jurisdiction, which do all of them depend either upon the liberty of the Common law, or upon the power of Statute law. The first Statute law that directs the matters of inquiry at the Leet, is the Act for view of Franckpledge, made 18 Edw. 2. which was but an affirmance of the Common law; and in that Statute are comprised and enumerated 33. several particular branches of misdemeanours inquirable at the Leet, which so fare as they may concern the modern jurisdiction of this age, and are neither obsolete not antiquare, ye shall find in this ensuing tract; according to a prescribed method, though distinguished from the rest by quotations of the Statute, and they are divided into two sorts. 1. They are either matters inquirable, and not punishable, as Treasons, Petty treasons, Praemunires, and Felonies, and all of them to be published for the disciplining of his Majesty's liege people, that they might not plead ignorance of the laws of the Realm; But (as for Petty treasons and Felonies) for that they are contra Coronam & dignitatem, by the Statute of 1 Edw. 3 cap. 17, 1 Edw. 3. C. 17 which literally doth command, That all Sheriffs and Bailiffs of liberties, and all others which take Indictments at their Turns, or elsewhere, where indictments ought to be taken, shall take Indictments by roll indented, whereof one part shall remain with the indictors, and the other part with him that taketh the inquest, so that the indictments shall not be embezzled, as they have been in times past, and so that one of the inquest may show the one part of the Indenture to the justices when they come to make deliverance. Yet this Statute by the general words doth extend to Stewards of Leets and all others; 1 Rich. 3. c. 4. Also such inquisitions in Turns, and consequently in Leets, are void, if every of the Indictors S. (Jurors) are not of good fame, and may expend 20. shillings by the year of Freehold, or 26. shillings 8. pence, of Copyhold in the same County, and this by the Statute of 1 R. 3 cap. 4. Stamf. plit. Coron. li. 2, cap. 24, fo. 85, 86, 87. 2. The second sort are matters here inquirable, presentable, and punishable. For the first it may seem unnecessary to inquire at the law day of those things which the Court hath not power to correct and punish, and which the authority of Instices of peace do daily meet with, But there are two reasons to clear the doubt and approve the inquiry of them. 1. The benefit of Escheats of lands and forfeiture of goods and Chattels: for upon conviction of any offender, in cases of Felonies, their lands do escheat unto the King if they be holden of him, or to the Lord, of whom they are holden, Saving to the King, the waste thereof for a year and a day; and therefore it is to be inquired what lands, tenements, and goods the offender hath, for they accrue to the King, if the Lord hath not a grant of Cattalla felonum by Charter from the King, 9 H. 7, fo. 23, 29. 2. Justice Fleming. The second reason Id. from the mouth of a Reverend judge, who in a speech of his concerning the necessity of Leets and law-days, said that a Leet was Schola insigniendi juvenes, a School to direct and instruct young men to know the ancient laws of the Kingdom, and to prepare them for greater employments at greater meetings, as the Assizes, Gaol delivery and Sessions of the peace. The first sort of offences which concern power of inquiry, but not of punition, are Treasons, Praemunire, Pettie-treasons, and Felonies. HIgh Treasons, which Glanvill lib. 1, cap. 2, calls, Crimen laesae Majest. ut de niece vel sedic. personae Domini Regis, velregni, vel exercitus, Britton ca 29, title Turns de Viscounts, giveth directions for enquiring at the Sheriffs Turn of the mortal enemies of the King or the Queen, or their children, or of their consenters. And long after that, by the Statute of 25. Ed. 3, cap. 2, a declaration was made what offences should be adjudged, High, or Petty treason. If any person do imagine or compass the death of our Lord the King, or of the Queen, or of their eldest son and heir, It is High treason, Crimen laesae Majest. by the ancient common law, For Princeps censetur una persona cum ipso Rege. Or if a man do violate the King's companion, or the King's eldest daughter unmarried, or the wife of the King's eldest son and heir. Or if a man do levy war against the King in his Realm, or be adherent to the King's enemies, in his Realm, giving them aid or comfort there, or elsewhere. Other Treasons which do not touch the person of the King so near. IF any counterfeit the great seal, privy seal, or the money of this Realm. Or if any bring false money into this Realm counterfeit to the money of England, knowing it to be false; to merchandise, or make payment in deceit of the King, and his people. If any do falsely forge or counterfeit any coin of gold or Silver, which is not the proper coin of this Realm, and is or shall be currant within this Realm. If any do forge or counterfeit the sign manual, privy signet, or privy seal. If a man slay the Chancellor, Treasurer, or the King's justices of the one bench, or the other, justices in Eyre, or justices of Assize, or any other justices being in their places doing their offices. All those before cited and all aiders, procurers, and abbetters, shall be deemed and adjudged Traitors, and shall incur●e all pains and for feitures, as in cases of High treason is used and ordained, 1 Mar. ca 6. If any for wicked lucre or gain do clip, wash, round, or file any money, which is or shall be the coin of this Realm, or the money thereof, or the coins or money of another Realm, which is or shall be allowed to be currant within this Realm, or the Dominions thereof, it is high treason, 5 Eliz. 11. The forfeiture by the Statute is of goods, but of lands only during life, and no corruption of blood, nor forfeiture of dower. It was first declared high Treason, 3 H. 5, afterwards abrogated, 1 Mar. 1, and revived by this Statute, of 5 Eliz. 11. Premünire and Treason. FOr the preservation of the dignity of the imperial Crown of England, 5 Eliz. c. 1: it was enacted, 5 Eliz. ca 1. That if any person of any estate, dignity, or degree soever, should by writing, ciphring, printing, or preaching, deed or act, advisedly and wittingly extol or set forth the authority of the Bishop of Rome, used or usurped within this Realm, or any the Dominions thereof, every such person, their abbetters, procurers, and counsellors, being lawfully indicted or presented within one year after such offence committed, and being lawfully convicted or attainted shall incur the penalty of Praemunire, provided by the Statute of Provision, made Anno 16 Rich. 2. And if any person, or persons, their abbetters, or procurers, after such conviction and attainder, do eftsoons commit the same offences, and be thereof duly convicted and attainted, shall incur the pains and forfeitures of high Treason. In like danger are they, who refuse to take the oath of supremacy prescribed, 1 Eliz. 1, which for the first offence is Praemunire. And if any the persons appointed by this Act, to take the said oath, do after the space of three months, next after the first tender thereof, the second time refuse, or do not take and pronounce it, shall also be adjudged in the case of high Treason, and this Statute requires a publication hereof at the Leete. But this Act shall not extend to make any corruption of blood, disinherison of any heir, forfeiture of any dower, nor the prejudice of any right or title of any persons, other than the right or title of the offender during his, her, or their life only. Nota, the penalty in a Praemunire is described 22 Edward 3.1, and 16 Richard 2.5, to be ou● of the King's protection, to forfeit lands, goods, and chattels, and their bodies to be taken, imprisoned, and ransomed at the King's pleasure, But by this Statute of 5 Eliz. 1, It is not lawful to kill any attainted in Praemunire. Petty Treason. IF any servant kill his or her Master or Mistress, or a man secular or religious killeth his Prelate or Ordinary, to whom he oweth faith and obedience, it is petty treason in them and the abbetters, 25 Edward 3, 2. If a woman killeth her husband, in regard of the subjection and obedience which she oweth to him, it is petty treason, 19 Henry 6, fol. 47. If a servant after he be out of service killeth his Master, so as it be done out of a prepensed malice whilst he was in service, It is petty treason though not expressly within the letter of the Statute of 25 Ed. 3. It is petty treason in a son who killeth his mother, and he shall be drawn and hanged, and so was the opinion of Thorpe, 12 Edward 3, 17. where a man killed his mother, took Sanctuary, and was drawn from thence and convicted, Cromp. Iust. fo. 15. Note that in all Petty Treason Felony is included, but not è contra, and it was affirmed 22 li. Ass. that a pardon of all felonies would servef●r Pett●e Treason, which is the reason that all Petty Treasons are inquireable as felonies in the Turn and Leet. The escheats hereof pertain to every Lord of his own fee, and the reason is, because such Treason doth not touch the King himself. Felonies. ALL Felonies at the Common law are here inquirable as felonies, saving the death of a man and Rape, which are here to be inquired as trespass, 7 Henry 6, fo. 13. 6 Hen. 7, fo. 4, 41 Ass. plit. 30. Of Felonies here inquirable there are these four several sorts ensuing, viz. 1 Such as do concern the ademption of Life. 2 Or hurt of body, without privation of Life. 3 Or the spoliation, and taking away of goods 4 Or the taking away, wasteing, and consuming of life, body, and goods. All privation of Life is comprehended under the general name of Homicide, But as one writes, Ex diversa interficientis intentione hoc diversas & appellationes & causas habet, The intention of the Actor doth alter the appellation of the Act. Skeny l. Regiae Majest. A learned Writer of the laws of Scotland doth set forth duo genera homicid●i, one which is called Murdrum; and the second sort, which is called simplex homicidium, and both are inquiable at the Leete as Bloodshed. Murder. MVrther is, where any of prepensed malice doth kill another feloniously (felleo animo) whether it be openly or secretly, and whether the party be an English man, or any other whatsoever, so as he liveth in the Realm under the King's protection. And all homicide which is done in this manner is called murder to this day for the name of murder was never changed, but: the law doth retain it continually for the heinousness of the crime, to put a difference between that and other homicide, and as a Civilian writes, Quicquid a praecedenti malitia, vel ferro, vel veneno, Cowel instit. vel modo quocunque perpetratur, illud murdrum dicitur. It was the crying scarlet sin of Cain in the first infancy of the world, and hath been, and is so horrid and detestable, as that by the Statutes of 2 Edward 3, 2, and 14 Edward 3, 15, a Charter of pardon was not to be allowed in such a case. By the Statute of 13 Richard 2, Stat. 2 c. 1, It was provided, that if the charter of the death of a man were alleged before any Justices, and if upon a good inquest of the Visne where the dead was slain, they did find that it was done by await, assault, or malice prepensed; the Charter should be disallowed, and further it should be done as the law commanded. Hence it was that a charter of pardon of all felonies will not discharge a Murder, without express words. And here in the duty and legiance of a Subject, I cannot pretermit the remembrance of his now gracious Majesties tender and incomparable care in pursuance of the true intention of those ancient laws, by rejecting and denying all suggestions and suits for pardons in cases of murder, rape, and such like heinous crimes, which to the comfort of all his true and loyal subjects he hath sufficiently demonstrated, by the equal and exemplary distribution of his justice, aswell to the tallest Cedars as to the lowest shrubs of his Kingdom. Manslaughter. ALL simplex homicidium or Manslaughter are distinguished from Murders, by reason they are done suddenly, and upon hot blood without malice forethought. In ancient times, if a man did lie in wait to kill another, it was felony, quia voluntas profacto, but now exitus in malificiis spectatur, & non voluntas duntaxat. These two are called homicidium voluntarium, the first aggravated by the name of Murder, ex praemeditato, which (as Bracton noteth) is committed, Ex od●o vel causa lucri nequiter & in Felonia. The second in regard of the sudden act not premeditate nor forethought, is qualified by the name of Manslaughter, and hath the benefit of Clergy, in resemblance to the law of Moses; who so killed his neighbour ignorantly whom he hated not in times past had the favour to fly unto one of the Cities of refuge, Deut 19.4. There are two other sorts of Homicide, one ex necessitate, in defence of a man's self, the other, ex casu, or by misfortune, both here inquirable by the common law. In the first, the necessity must be so great, as that it may be deemed inevitable, or else that homicide is not excusable, the definition of it is rendered by M. Stamford, li. 1, cap. 7. If a man make an affray upon another, and the party assaulted doth fly so fare as he can, for safeguard of his life, so that he be driven to a strait, beyond which he cannot escape, and the other still continue the assaulting of him, In this case if he strike and kill the assaultant, It is homicide se defendendo. But the matter must be specially found upon the Inquisition or Indictment. And 2. precedents of such inquisitions are set forth by Master West ti●. Indictments. Yet he forfeiteth his goods, and must purchase his Charter of pardon for the same, by the Statute of Glonc. cap. 9 Homicide casual or by misfortune or misadventure, is defined by Moses, the pattern for all Lawmakers, Dent. 19.5. When a mangoeth into a wood with his neighbour to hue wood, and his hand fetcheth a stroke with the Axe to cut down the tree, and the head slippeth from the helve, and lighteth upon his neighbour that hed●e, he shall flee to one of those cities and live. So that in this case or the like, as throwing a bar, or stone, or shooting an arrow at a mark, or in doing any other lawful act, without an evil intent, it is homicide by misadventure, and the Actor shall (instead of Moses City) have his refuge to the mercy of his Majesty's crown for a pardon of grace, by the Statute of Glone. c. 9 as in the case of se defendendo. But note as a rule, in all unlawful actions or attempts the event is not excusable, as if two or more commit an affray, and a third person comes between them to keep the peace, and is slain, albeit this accident was without an evil intent, yet in regard of the unlawfulness of the occasion (as the affray, contrapacem) It is selonie in the manslayer, and not misadventure, Fitz. tit. Coro. 180.22. lib. Ass. Felonies which do concern the hurt, dishonour, and detriment of the body, without privation of life. Rape. IF any man ravish any woman, be she widow, or maid, she not assenting before nor after, or if it be done with force she assenting after, every such person and the aiders and abetters are in the case of felony, by the statute of Westm. 2 cap. 24. A pardon of all Felonies in general words, doth not discharge a Rape, without special words by the Statute of 25 Edw. 3. ca And the benefit of Clergy is taken away by the Statute of 18 Eliz. cap. 6. It was ever anciently enquirable at the Turn and Law day, where it was not presented before the Coroner, 18. E. 2. Upon a presentment before the Sheriff in his Turn, and returned upon a Certiorari into the King's bench, of a Rape feloniously committed, it was the opinion of Hussey chief justice, and other judges, 22 Edw, 4. fol. 22. that the presentment was void, and that the power of a Sheriff in his Turn, and of a Steward in the Leet, being all one, they had no authority to inquire of any things, but such as were felonies, and trespasses by the common Law. Yet it seems the wisdom of the common Law thought fit to continue and maintain the enquiry of that and other offences at Tourns and Leets, in the same nature and condition as they were before the alteration by Statutes. And though the Statute laws have in many cases enlarged and extended the punishment, yet have they not abridged the ancient discipline and jurisdiction of those Courts. All Rapes are here inquirable as trespasses, and so it appears by Fitz. in his Court Leet, and in M. Kitchen, and all other tracts of this nature. Phisyognomie defaced or disfigured. IF any put out any man's or woman's eyes, or cut out their tongues, or noses, or disfigure any member to the intent they should not see, nor speak, it was and is inquirable as bloodsheds, Fitz. Leet 1 Mariae. And yet by the Statute of 5 Hen. 4 cap. 5. The malicious cutting out of the tongue, or pulling out of the eyes of the King's liege people, were made felony, and not without good ground, since they are the principal members to glorify almighty God: The eyes to look up to heaven, I will (saith the Psalmist 12 1.) Lift up mine eyes unto the hills from whence cometh my help, And Psal. 123. Ad televavi oculos meos, Unto thee lift I up mine eyes, O thou that dwellest in the heavens. The tongue to chant and send up the sweet incense of prayers and praises to the mercy seat of heaven, It must be malice in excess, that dare adventure the depriving and defacing of those instruments and organs of God's glory. Felonies which concern the taking away, wasteing, and consuming of Life, body, and Goods. Sorcerers, Conjurers, and Witches. ALL Sorcerers, Conjurers, and Witches, which sort of offenders were by the common law guilty of felony, and were to be burnt; Fitz. Nat. foe. 269. who citys for his authority Britton lib. 1. cap. 17. It was death by the law of Moses, Thou sh●lt not suffer a witch to live, Ex. 21.18. A man or woman that hath a familiar spirit. or that is a wizard, shall be surely put to death, they shall stone them with stones, their blood shall be upon them, Levit. 20.27. For the repressing of those abominable offences, divers laws were made 33. Hen. 8.8. and divers other succeeding statutes, All repealed, 5 Eliz. 16. And that Stature anulled by An. 1 jacobi 12. By which for the better restraining the said offences, and more severe punishing the same, It was enacted, That if any should practise or exercise any invocation, or conjuration of any evil and and wicked spirit. Or should consult, covenant with, employ, or reward any evil and wicked spirit, to or for any intent or purpose. Or take up any dead woman or child out of their grave or other place of rest, or the skin, bone or any other part of any dead person, to be used in any manner of Witchcraft or Sorcery. Or shall use or exercise any Witchcraft, Sorceric, Charm or Enchantment whereby any person shall be killed, destroyed, wasted, consumed, pined or lamed in their bodies, or any part thereof, It shall be felony in them, their aiders, abbetters, and counsellors, without privilege of Clergy or Sanctuary. And if any by such practices shall take upon them to declare where any treasure of gold and silver should or might be found, or had in the earth, or other secret places, or any goods lost should be found. Or to the intent to provoke any person to unlawful lust. Or whereby any person should be destroyed, hurt, wasted or impaired in their bodies, cattles, or goods, although the same be not effected and done. The first offence is imprisonment for one whole year without bail, and once in every quarter of that year to stand in the Pillory in a market town, in open market or saire by the space of six hours, and there to confess their offence. And the second offence felony, without any privilege of Clergy or Sanctuary. This Statute so exactly deciphering these offenders, doth seem to receive its light from the Levi●icall law, Deut. 18. vers. 10, 11, 12, Those that ●asse through the fire, that use divination, or are observers of times, or an enchanter, or a Witch, or a charmer, or consulter with familiar spirits, a Wizard, or a Necromancer, all that do these things are an abomination to the Lord, etc. These offences are inquirable at the Turn and Leet by the Common Law. Felonies which concern the goods of any person, and first of God's House. Sacrilege. SAcrilegious ●obbing of Churches or Chapels, or other holy places, and taking away any ornaments out of them feloniously, is here inquitable as Felony. Such as Lyc●●●chus the wicked Church robber is described to be, Maccha. 2.4.42. who for his offence was stoned by the multitude. Such offenders in our days have not the benefit of Church or Clergy. Frustra petit auxilium Ecclesiae, quipeccat contra Ecclesiam. Latrocinium. Thest. ALL Theft called by the Law Larceny, Latrocinium, (which Bracton describes to be, Contrectatio rei alienae fraudulenta, animo furandi, invito illo, Cujus res fuerit) is either de re magna, of any thing above 12 pence, or de re parva, under twelve pence. But note that this Contrectatio rei alienae, must be of personal things, and not of real things, as to cut down a tree and carry it away, Or to take away a box with Charters, Or to take and carry away treasure trove, any wreck of Sea, or waif or strays is not felony, Quia Dominus rerum non apparet. Cutpurses, or Pick-Purses. A Kind of evil disposed persons, felons and thiefs by the law, which commonly usurp amongst themselves a wicked brotherhood, and live by the spoil of good and true Subjects, by felonious slights and devices, from which they have their appellation, they set up their shop every where, not only in places of commerce, as markets, and fairs, and other popular meetings, but in the sacred places of piety and justice, nay at the very execution of malefactors, which should be a terror to them. Britton citys the inquiry of them at the Turns, and Stat. 8 Eliz. 3, bars them of their Clergy. Petit Larceny. PEtit Larceny is parvum Latrocinium, of any thing under twelve pence, as Hens, Capons, Pigs, Geece, Chickens, Sheaves of Corn in harvest, and such like. And for such petty things, the rule of the Law, Nullus Christian morti tradatur, Stamsord. sed allo modo castigabitur, which is now by whipping, for the Law will not suffer the least offence to escape without its proportion of punishment, Ne facilitas veniae, praebeat aliis materiam delinquendi. Other sorts of Felonies. Felonious taking of Doves in Dove-houses, so as they be not in their savage or flight, for than they are nullius in bonis, is felony, and by the common Law here inquirable. Taking young Pigeons out of their nests, or young Goshawkes' in their nests, which cannot fly nor go, Tr. 18 Edward 4, 10 Edward 4, folio 15. Taking fish out of a pond, stews, or trunks, or any place set a part for a man's private propettie, and not in a common river, Or taking any Cignets, Swans marked, or Peacocks, or any tame domestic Deer, knowing it to be domestic. All other thefts, which are Felonies at the common Law, are here inquirable, To touch some few for instruction of youth. If a Taverner put a piece of plate before one to drink, who carries it away, it is felony, because he had not the possession but the use of it. If any Butler or Cook who hath any vessels or plate to use, doth carry them away, it is felony, because the possession, was always in the owner. If I deliver the key of my chamber to another, and he goes and takes my goods out of my chamber, it is felony. If I bargain with one to carry certain chests to a place, and he taketh and carrieth them to another place, and breaketh them open, and taketh away the goods within them feloniously, and converts them to his own use; It is felony, for he did not pursue his Bargain. If I deliver a Tun of Wine to one to carry, and he taketh out 20 Gallons, or more, or less, it is felony. And in like case, If I deliver goods to one to carry to a place, and after he hath carried the same thither, he steals them away, it is felony, for that the privity of the delivery was there determined. To take the flesh of any tame or wild foul, or beast, (that is dead) out of the possession of another man. Or to take the wool from the sheep's back, or to take the skin or tallow, and leave the body behind, is felony, Stamford foe. 25. Many more might be reckoned, but the distinction of an●mo furandi being observed; this may serve instar omnium. Burning of Houses. IF any shall feloniously burn any dwelling House, or any Barn adjoining, or any stacks or mows of Corn, near any Barn or dwelling house in the night time, it was felony at the common Law, and the offenders no way repleviseable. As appears by the Statute of Westm. 1. cap, 15. No. M. 11 H. 7, fo. 1. One indicted for burning of a Barn feloniously in the night time adjoining to an house, was attainted of felony by the common Law. Bracton notes, that this crimen incendii, must be done nequiter & in felonia, vel ob inimicitias, viz. wickedly, feloniously, or for enmity, otherwise (saith he) if it be done by chance or negligence Tunc civiliter agitur contratales, etc. An action of the Case lieth, M. Britton li. 1. ca 17. fo. 16. affirms that such felonious incendiaries were burnt, For in quo quis peccat, in co punietur, Fitzh, Nat. fo. 269. There are two grand felonies which commonly aim at Contrectationem rei alienae, and though little be acted, yet are they aggravated by the will of the offenders, viz. Burglary and Robbery. Burglary. IF any man in the time of peace, after Sunset, and before the sun rising (that is to say) in the night time, cum facta silentia tectis) shall break any Houses, Churches, Walls, Towers or Gates, with a felonious intent, to rob, or kill, or commit some other felony, though nothing be carried away, It is Burglary, the indictment must be quoth noctanter fregit. If a man hath a mansion house, and he and all his family are (upon accident) absent some part of the night out of the house, and in the mean time one comes and breaks the house to commit felony, it is Burglary, for although neither the owner nor any of his family be in the house, yet it is domus mansionalis. By the same reason, if a man hath two houses, and dwelleth sometimes in the one, and sometimes in the other, And in the night time when the family are out, one of them is broken by thiefs, It is Burglary, Co. li. 4 fo. 40. Bracton notes, that if the owner of a house in a case of Burglary, defends himself in his house, and the Burglo be slain, So as the owner could not o herwise defend himself, invasor inultus remanebit, the owner shall not be punished, For saith he, Non est dignus pace qui non vult servare eam, etc. Robbery. Robbery, or (as Bracton terms it) rapine, is when a man taketh any thing from the person of a man feloniously, though it be but the value of a penny, is here inquirable. The law was ancient (and so still remains in the case of Burglary) That if a man were taken depraedando, or deburglando, though he took or carried nothing away, it was Felony; it is otherwise now in the case of Robbery, unless some thing be taken away. In both these the benefit of Clergy is taken away by the Statute of 18 Eliz. c. 6. Accessaries before and after the Fact. IN Felonies, there are and may be Accessaries, If one procure or command another to commit a felony, though he be not present at it, when it is perpetrated, this procurer or commander is an Accessary before the fact. If any person receive a fellow having knowledge of the fact which he committed, or do favour or aid him, he is an Accessary after the fact, Stamford foe. 40. If there were no receivers, there would not be so many thiefs. In the arrest and apprehension of any the offenders before mentioned, the law is careful to have them brought to examination and trial, and to prevent all escapes which are either voluntary or negligent, as also all rescous of felonies. Escape voluntary. IF any be arrested for felony or any other crime, and afterwards the party in whose custody he remains, doth suffer him to go at large whither he will, it is a voluntary escape. And if the arrest of him (who escaped) were for Treason or Felony, it shall be adjudged the like against him who suffered the escape, and so in a trespass, Et sic de singulis, Stamford fo. 33. Escape negligent. EScape negligent, when one arrested for felony escapeth against the will of him who doth arrest or keep him, and is not freshly pursued nor taken before the pursuer loseth the sight of him, though he after take him, It is fineable according to the quality of the offence. Rescue de fellow IF any shall presume to rescue and set at liberty by fraud or force any person apprehended or arrested for felony, it is felony in the rescuer, and here inquirable, 1 Henry 7.9. * ⁎ * The Second sort of Offences; which do concern the power of a Leet, both in inquiry, and punishment, and are either grounded upon the Common Laws, or the Statute Laws of this Realm, and may be reduced to these several Branches hereafter following. The KING'S Prerogative. ALL Suitors and Resiants within the Precinct of a Leet ought to appear in person, and are presentable if they do absent themselves. Chief Pledges. IF the Capital or chief Pledges of every Decennary viz. the Tething man, whose institution and office hath been before at large described, do not appear, the ancient use of them was to take care, that none should come within the Signiory or liberty, but find pledges of their good abearing; If this law were well observed, the Justices of peace would not be troubled with settling and dissetling of persons from parish to parish as now they are. Legiance. ALL and every male person of the age of 12 years and upwards abiding within a Liberty by the space of a year and a day, who hath not done his suit royal, scil. taken the oath of Legiance (before at large expressed) are presentable, 18 Edward 2. Every one of that age being a subject borne, must be juratus in Decennaria, Brook Leet 39 See Canutus Law 19 Lamb. ●r●h. Nos vero praecipimus ut quisque annos ad 12 natus jurejurando fidem det, see in posterum tum furto, tum furti societate temperaturum. All and every person or persons, who shall keep or harbour any such youths, and do not bring them in to be sworn, are presentable, Broo. Leet 7. Common Nuisances ALL Purprestures are here inquirable; The word is not obvious to every country capacity, Glanv. li. 9, ca 11. thus defines it, Dicitur autem propriè purprestura, etc. It is properly called Purpresture, when any thing is unjustly usurped upon the King, as upon the King's demesnes, or in stopping the public ways, or turning public waters out of their right course. Or when any man shall erect any thing in any City upon the King's street, and generally, Quoties aliquid sit ad nocumentum Regii tenti. vel Regiae viae vel civitatis. All Purprestrures, are either erigendo, or destruendo, either in setting up, or casting down something which may tend to a public annoyance. They are commonly made in Lands, Woods and waters, to the inconvenience of his Majesty's liege people, by stocks and blocks, or levying any Dikes or Hedges, or by making or filling up any Dikes. If any walls, houses, pales or hedges, be made and erected, or beaten and thrown down, or any ways and paths opened or stopped to the hurt of the people. If any waters be turned or stopped, or diverted out of their right course, or if the common Rivers be corrupted and annoyed by white tawing, lime, or such like. Or if any ditches mounds, and Rynes, which are the fences, of grounds be not duly scoured and cleansed. Encroachment on Highways. IF any encroach upon the King's high ways, or any carrion or unwholesome thing be cast into the same, or in the common streets to the annoyance of the people. Bridges, etc. IF any Bridges or Causeyes be decayed or broken, inquiry is to be made of the defects, and who ought to repair them. Watering with Hemp, etc. IF any person do water any Hemp or Flax in any river, running water, stream, or brook, or other common pond, where beasts do use to drink, it was and is a popular nuisance at the Common Law, and inquirable and amerciable at the Leet. But by the Statute of 33 H. 8. cap. 17. the party offending doth forfeit for every time so doing 20. shillings, 33 H. 8. c. 17. the one half to the party grieved, or any other that will sue for the same forfeiture in any Court of Record, Leet, or Law-day, by action of debt, bill, plaint, information or otherwise, and the other moiety to the King. As Highways must not be encroached upon or annoyed, so they must be duly repaired and amended. Highways. THere are two sorts of Highways, 1 Chimini Majores, 2 Chimini minores, The Majores are the four great fossae ways, whereof two extend through the Kingdom in length, and two in breadth. The lesser ways are such which lead from City to City, and from one Town to another, per quos mercata vehuntur, etc. for conveying and carrying of wares and merchandise from market to market; and concerning these, it was the Law of King Edward Confessor, Si quippiam operis ad corum perturbationem erigatar solotenus deponatur, & chimini more solito reparentur, which is agreeable to the common Law at this day. And for that the highways grew very noisome and tedious to travel in, 1, 2. Ph. Marca. 8. and dangerous to all persons, passengers, and carriages, It was enacted, That the Constables and Churchwardens of every parish within this Realm, should yearly upon tuesday or wednesday in Easter week, call together a number of the parishioners, and elect two honest persons of the parish to be surveyors and orderers for one year, of the works for amendment of the high ways in their parish, leading to any market town. That the surveyer shall have authority to order and direct the persons and carriages which shall be appointed for those works by their discretion, and shall take upon them the execution of their offices upon pain of 20 shillings every one making default. That Stewards of every Leet have power to inquire by the oaths of the suitors, of all and every the offences, that shall be committed against every point and article of this Statute, and to assess such reasonable fynes and amerciaments as shall be thought meet. That the Steward of every Leet shall make estraets indented of all the fynes, forfeitures, and amerciaments, for the defaults presented before him, and shall deliver one part figned and sealed by him to the Bailiff or high Constable of every Hundred, Rapelathe or Wapentake, where the defaults shall be presented, and the other part to the Constables and Churchwardens of the parish, wherein the defaults were made, the same to be yearly delivered within six weeks after Michaelmas, to be bestowed on the high ways in the said parishes. That the Bailiff and head Constable shall at least once every year, between the first of March and the last of April, make true account and payment of all such sums of money to the Constables and Churchwardens of every such parish, or two of them, as he shall have collected upon any the said estreats, upon pain to forfeit, 40. shillings for every time, to be bestowed as aforesaid. This Statute by a Latter of 5 Eliz 13. was continued and the authority of supervisors enlarged, 5. Eliz 13. for the taking and carrying away of rubbish, or the smallest broken stones, of any quarry or quarries within any such parish, without licence, controlment or impeachment of the owner or owners, so much as shall be deemed necessary for the amendment of high ways, and in default of any such quarries, to dig in any private grounds, for any gravel, sand or sinder, and to gather stones lying upon lands or grounds, so as the said digging be not in the garden, house, orchard, or meadow of any person or persons, and under other provisions in the said statute mentioned. It is further enacted, that the heys, fences, dikes or hedges, next adjoining on every side, to any high or common fairing ways, shall from time to time, be diked, scoured, repaired, and kept low, and all trees and bushes growing in the high ways, cut down by the owners of the ground or soil, whereby the ways may be open, and the people have the more ready and easy passage in the same. If any person shall not do it, he forfeits, 10. shillings, 18. Eliz. 9 There must be yearly, six days used and employed in the reparation and amendment of the high ways, before the feast of the nativity of S. john Baptish, and knowledge thereof to be given in the Church the next Sunday after Easter, and upon the said days the parishioners shall endeavour themselves to the mending of the ways, and shall be chargeable as followeth, viz Every person for every plow-land in tillage or pasture within the parish, And every other person there keeping a draught or plough, shall find and send at every day and place, one Wain or Cart furnished according to the custom of the Country, with all necessaries meet to carry things, and also two able men with the same, upon pain of every draught making default, 10 shillings. Every other householder, and every cottager and labourer, not being an hired servant by the year, shall by themselves, or one sufficient labourer, upon every of the said days, work there every of the said days, upon pain every one making default, each day twelve pence. Every person (except such as dwell in London) that shall be assessed in subsidy 5 pound in goods, or 40 shillings in lands, or above, and being none of the parties chargeable by any former law, but as a cottager, shall find two able men every of the said six days to labour in the high ways. Every person having a plow-land in several parishes, shall be chargeable to the making of the ways where he dwelleth. Every person keeping in his or their hands several plowlands, in several parishes, shall be charged to find one cart or wain etc. furnished for the amendment of the high ways within each several parish. All occupiers of lands adjoining to the ground so adjoining to any such high way, where any ditching or scouring should or ought to be, shall from time to time ditch and scour in his and their ground so adjoining, whereby the water conveyed from the high way over the ground next adjoining, may have passage over the said ground next adjoining, upon pa●ne for every time, for every rod not so ditched and scoured 12 pence. If any having any ground, adjoining to any high way, leading to any market town, shall cast or scour any ditch, and throw the soil into the high way, and suffer it to lie there by the space of six months, shall forfeit for every load 12. pence. The moiety of the forfeitures by all these three several Statutes, 1, 2. Phil. Ma. ca 8. 5 Bliz. 13. 18 Eliz. 19 shall be to the Churchwardens to bestow upon the ways, and Stewards of Leets have power to hear and determine all offences, etc. Popular Annoyances. ALL common or popular Nuisances done to divers and sundry of the King's Subjects, are inquirable as this ancient Court, and so are all trespasses at the Common Law being popular. Boundaries. IF any ancient bounds, meats, or landmarks be withdrawn and taken away, such as distinguish hundreds, parishes, tithings, Common, Common meadows, and common fields to avoid confusion, and consequently dissension, are here inquirable, 18 Edw. 2. Cursed is he that removeth his neighbour's landmark, and let all the people say, Amen. And it is commanded in Deuteron Thou shalt not remove the ancient bounds which thy fathers have made. It is to be observed that divisions by lots and boundaries, have been ever held in great esteem in all ages, even amongst the Heathens. For the taking away of a particular boundary or meet, which concerns only one man, an action of trespass lieth. And so I find in the Regist. fo. 107, De petris pro metis positis abstractis. Hedge-Breakers. IF there be any common breakers of hedges within the Leet, who tear up frithes and fences, and leave their neighbour's ground subject to incursions of Cattles, and are a means that many trifling actions of trespass are set on foot, to the disquiet of his Majesty's Subjects. Poundbreach. IF any break any common pound or pinfold, which is Custodia legis, to take any distress out of the same, though the distress be tortuous and without cause, yet the poundbreach is unlawful, for that the cattles were in the custody of the Law, and the owner might have a Replevin. If any shall rescue, and by force take away any cattles or other thing which is distreyned for any rent, amerciament, or other cause before it be impounded, or in any other safe custody, it is presentable. Rescous. IF any commit any Rescous within the liberty upon the Sheriff or his Bailiffs, or any the King's officers, in disturbance of them, from taking and detaining any person arrested. Bloodshed. IF any person commit any assault whereby bloodshed doth ensue, or doth make any affray or outrage whereby any mutiny or disturbance doth arise amongst the King's liege people, it is popular and presentable, 1 R. 3, fo. 1. Bro. Presentm. 7 Leet 26. General Grievances. THe subsequent offences will descrve that mark or character, in regard they are generally pernicious to the Commonwealth by their fruits and example, and are punishable by the common Law, Or because they are generally prohibited by Statute Laws for the good of the public weal: And in the first rank are the evil members of a State and Realm, of which regiment the common Barretor may well be the ringleader. Common Barrators. IF there be any common Barrators within the liberty, they are of both sexes, Scolds, Brawlers, common malefactors, disturbers and disquieters of their neighbours. A common Barretor is well described. Co. li. 8. fo. 37. to be a common mover and stirrer up or maintainer of suits, quarrels or parties either in court or country. 1 In Courts of Record, or in the County, Hundred, and other inferior Courts. 2 In the Country three manner of ways, 1 In disturbance of the peace, 2 In taking or detaining of possessions of houses, lands or goods, (which are in question) not only by force, but also by subtlety, 3 By false invention and dispersing of calumniations, rumours and reports, whereby discord and disquiet do arise amongst his neighbours. This person is the common incendiary of strife in his neighbourhood, and is ever fishing in troubled waters. He is always like a Wolf worrying his harmless neighbours with multiplicity of unjust and feigned suits, either by information upon penal Statutes, or by personal actions, for himself and others, or by malicious procuring of Latitats or Supplicavits of the peace, and all by fraud and malice, to enforce the poor party to give him money, or some other composition ad redimendam vexationem. Evisdropper. THe Evisdropper who is a species of a Barretor, doth succeed in his order, one that lurks under walls or windows, by night or day, to hear and carry tales, and raise strife twixt neighbours, a most perilous member in a peaceable common wealth: the holy Ghost in the new Testament, calls such an one Diabolus, a false accuser, calumniator, or makebate, 2 Tim. 3.3 Solomon, Prov. ca 26. v. 20. cries our against them in this wise, Where no wood is, there the fire goeth out, where there is no talebearer, there strife ceaseth, verse. 21. The words of a talebearer are as wounds, and they go down into the inner most parts of the belly, Levit. 19 ver. 16. Thou shalt not go up and down as a talebearer among the people. The literal interpretation of a Talebearer or accuser is one that maketh merchandise as it were of words, uttering them as wares, going from place to place to hear and spread abroad criminations of other men. Such creatures are compared to a kind of fowl and infectious vermin, called Weasels, who conceive by the ears, and bring forth their little ones by the throat, a thing abominable in men to receive by the hearing any false and feigned deprivations, and to utter and exaggerate the same by their tongue and report, and certainly a patulous and forward ear, doth encourage and entice a busy tongue, and both the detractor and the hearer Diabolum habent, alter in aure, alter in lingua. Lewd houses. THose who keep and maintain in their houses lewdness, and lewd strumpets, whose persons are justly branded for Bawds and Panders, and their habitation for Stews and Brothel houses, which minister frequent occasion of murders, and bloodsheds, and often infringement of the peace, to the utter ruin and destruction of famines, a most odious and audacious sin which poisoneth and corrupteth the public weal, this lewd and too accustomed vice is punished in the spiritual Court, pro salute. animae, but here inquirable, pro salute reipublicae, 27. Hen 8. fo. 17. Rogues, etc. ALL Rogues, Vagabonds, and sturdy persons that wander up and down are here inquirable by the common law; 39 Eilz. ca 4. For suppressing such kind of people, divers laws were made which were all repealed by the Statute of 39 Eliz. ca 4. and thereby a description made, who should be accounted Rogues, Vagabonds and sturdy beggars, That is to say, 1 All persons calling themselves Scholars, going about begging. 2 All Seafaring men pretending loss of ships or goods. 3 All idle persons going about begging, or useing any subtle craft or unlawful games. 4 Or feigning knowledge in Phylomuse siognomie, Palmistry, or other like crafty science. 5 All tellers of destinies, fortunes, or other-like fantastical imaginations. 6 All Proctors, Procu●ers, Pattent-gatherers, or collectors for Gaoles, Prisons, or Hospitals. 7 All Fencers, Bearwards, common Players of interludes and minstrels, wand'ring abroad (other than such as belong to honourable personages, lycensed under their hands and seals of arms.) By the Statute of 1 jac. 7. which did continue and enlarge the said Statute of 39 Eliz. all licences of honourable personages are taken away And all glassemen wand'ring up and down the country are numbered in the rank of rogues, By this Statute every man is bound to apprehend such a rogue as he or they shall see or know to resort to their houses to ask or receive any alms, and to carry, or cause him to be carried to the next Constable or Tethingman, upon pain for every time, 10 shillings, to be levied and employed according to the provision of 39 Eliz. in manner following, viz. For the reparations and maintenance of the houses of correction, and stock and store thereof, Or relief of the poor where the offence is committed, at the discretion of the Justices of peace of the limit, city, or town corporate, and to be levied by warrant under the hands and seals of two or more of the said justices, by distress and sale of the offender's goods and chattels. And in default of any such levy, then to be levied and employed by the Lord of the Leet or his Officer, in such manner, as is prescribed by the Statute of 39 Eliz. By the same Statute of 1 jac. If such Constables or Tethingmen, do not cause the said rogues, vagabonds, and sturdy beggars, to be punished according to the Statute of 39 Eliz. That then they shall forfeit 20 shillings for every default to be levied, and employed in manner as in the Statute 39 Eliz. is set forth. This Statute of 1 jacob. is continued by 21. jacob. and 3. Car. and doth not any way abridge the former power of the Court Leet, in enquiring, presenting, and amercing, but rather gives an amplification to it, and a special direction (who are to be accounted rogues) which before those Statutes were not so exactly known and deciphered. This Law in point of preventing justice, is the most useful of all other ordinary Laws, for experience will teach every one, that the opportunities of their lawless and wandering liberties, (were not such provisions of restraint made) would minister occasions of robberies, burglaries, assasinations, murders, and other grievous offences. Message of Thiefs. IF any be employed, and do go in the message of thiefs, and are as bad, and worse than rogues, are here inquirable. Masterless persons. ANd so are those, who like Antipodes, walk in the night, and sleep in the day, men that live without means, or master, far well, and have nothing, who are not able to render an account of their life. Haunters of Alehouses. Amongst vagabonds, or hazarders and night walkers, M. Fitzh. and M. Kitchen, have joined common haunters of Taverns, or Alehouses, and since they wrote, divers good laws have been made, aswell against such haunters, as against drunkards, and their harbourers, and receivers. The first Statute being 1. jaco. 9 entitled, an Act to restrain the inordinate haunting and tippling in Inns, Alehouses, and other victualling houses, doth set forth the ancient true and principal use of such houses, to be for receipt and relief of way faring persons, and for supply of the wants of poor people, and not meant for the harbouring of lewd and idle persons to spend and consume their money and time in drunken manner. By which Statute it was restrained that no Alehousekeeper, etc. should permit any inhabitant or town's man (other than labourers and handicraftsmen, or persons invited by any traveller) to continue drinking or tippling in any such house, upon pain to forfeit for every such offence to the use of the poor of the parish ten shillings. Drunkards. ANd afterwards by a Statute of 4. jac. 5. and entitled, 4 jac. 5. An Act to repress the loath some and odious sin of Drunkenness, which thereby is rightly described to be the root and foundation of many other enormous sins, as bloodshed, stabbing, murder, swearing, fornication, adultery, and such like, to the great dishonour of God, and of our nation, the overthrow of many good arts and manual trades, the disabling of divers workmen, and the general impoverishing of many good subjects, abusively wasting the good creatures of God, It was provided, that every person which should be drunk, and thereof lawfully convicted, should within one week after conviction pay 5. shillings to the use of the poor of the parish, And upon refusal or neglect or non ability to pay it, to be committed to the stocks, there to remain six hours, and if any person should continue drinking and tippling in any Inn, etc. in the place where he inhabiteth, being duly proved in such manner as is limited in the act of 1 jaco. He shall forfeit 3. shillings 4. pence, to be levied as the penalty of drunkenness, and for nonpayment to be committed to the stocks, by the space of four hours. That all Constables, Churchwardens, Headboroughs, Tethingmen, Aleconners, and Sidemen, shall in their oaths incident to their several offices, be charged to present the offences contrary to this Statute. This Statute appoints a forfeiture of ten shillings upon the Constable or other inferior officer, who shall neglect the correction of a drunkard, or levying the penalty upon him, and further gives power to the Court Leet, to inquire of, and punish all the offences in these two acts, so as the presentment be within six months after the offence. These two Acts by a latter of 21 jaco. ca 7. with the alterations and additions therein expressed, 21 Jac ca 7. are to be put in due execution, and to continue for ever. And whereas proof of two witnesses was required by the said statutes, now the proof of one should be sufficient. That the voluntary confession of any offender against either of the said Statutes (before any person, authorized by the said act to minister an oath) shall suffice to convince the party so offending, and afterwards the oath of the party so offending and confessing shall be taken and be a sufficient proof against any other, offending at the same time. That if any stranger should be found upon view of his own confession, or proof of one witness to be tippling in any Inn etc. he shall incur the like penalty, as if he were an inhabitant, to be levied and disposed, as in the said act of 4 jac. is expressed. That the oath limited by the said Statute of 4. jac. to be ministered to Constables, etc. for presenting of offences contrary to the Statute, shall be always hereafter enlarged and extend to present all offences, done contrary to all these three several Statutes, according to the several alterations and additions in the same. 1 Car. R ca 4. By the Statute of 1 Car. Regis cap. 4. entitled, An Act for the further restraint of tippling in Inns, Alehouses, and other Victualling houses. It is provided that every Alehouse keeper, etc. which shall permit any persons not there inhabiting to tipple in his house, shall incur the same penalty, and in such manner to be proved, levied, and disposed, as by the Law of 1 jac. is appointed for suffering townsmen, and inhabitants to tipple in their houses. And keepers of Taverns, and such as sell wine in their houses, and do keep Inns or victualling, shall be taken to be within the said two former Statutes of 1. and 4. jac. and also within this Statute of 1 Car. ca 4. 4 jac. 5. A drunkard convicted the second time, 21. ja. 7. is to be bound with two sureties, to the good behaviour from thence forth. Every Alehousekeeper which shall be convicted for any offence, against any the branches of either of the two former laws, and the meaning of this Statute, shall for the space of three years after his conviction, be utterly disabled to keep any such Alehouse. Who shall be a drunkard. There is no Law or Ordinance so exactly made by the wisdom of a State; but the enemy of mankind, and his ministers and members, would invent some device and machination to elude it. As, to that good law against that odious sin of drunkenness, there is a great disputation grown (as if there were need of a new act to interpret it) who shall be accounted a drunkard. In the opinion of some famous in that faculty, none shall be deemed a drunkard, unless he be so bereaven of his memory, reason, sense, and understanding, that he is not able to knew the difference between his head and feet, Et pedis & capitis quae sint diserim na nesoit. But such sophistical Symposiarchistes must look bacl upon that of Isaiah, Vae qui consurgitts mane ad ebrietatem sectandam, & potandum usque ad vesperam ut vino aestueris, that wine may inflame them. All excess of drinking, ultra necessitatem, which doth inflame and begets a distemper, and disorder, in the ordinary disposition of nature, is to be accounted Drunkenness. He that is strenuus in vino, and can carry his burden like a brewer's Horse, is not more excusable than the weak infirm drunkard. All the several sorts and kinds of drunkenness, may be reduced under two regiments. 1 The one sort which drink ad insaniam, till they be so mad, as that they will fight with a wall, or with their own shadow in the Moon light. 2 The other sort which drink ad delirium, till they fall into a sottish and swinish drowsiness, The Psalmist 107. vers. 27. describes them by a comparison of ships on the Sea, They reel to and fro, and stagger like a drunken man, and are at their wit's end. I need not speak more of them, There are many Sermons and Tracts extant in print against them, and yet a man may commonly with grief hold several sorts of them reeling, and in conflict with the stones of the streets, in the face of the Sun, and pass with impunity. There follow three mischievous members, who are public enemies to the peace and plenty of a Realm, one preys upon the coin, the other two, upon the corn and victual of a Common weal. Usury. Usurer's were here inquirable, as offenders against the common Law, It appears by Glanvill, li. 7. ca 16. that their goods and all their chattels, which they had at the time of their death, were to be seized to the King's use, and their heirs to be disinherited, and their lands to return to the Lord of the fee, and the reason why he was not to be convicted in his life time, because it was presumed that he might repent and forsake the sin before his death, which if he did, he was then freed from the mulct of the Law, and so it is rendered in the same tract, Sciendum tamen, quod si quis aliquo tempere usurarius fuerit in vita sua, & super hoc in patria publicè defamatus, Si tamen a delicto suo ante mortem suam destiterit & penitentiam egerit, post mortem ipsius, ille, vel res suae lege usurarii minime sensebuntur. And li. 10. ca 3. He defynes what a Usurer is, one that taketh more than his own, Si quis aliquid crediderit, si plus eo receperit, usuram facit. This Law had its propagation from the confirmation of the Mosaical law by king Alfred. Exod. 22. vers. 25. Lamb. Arch. fo. 23. Si pecuniam mutuam dederis populo meo pauperi qui habitat tecum, non urgebis eum quasi exactor, nec usuris opprimes. It seems by the Statute de judaismo, made An Dom. 1289. & 16, Ed. 1. That the dispersed jews (who then much infested this Kingdom) were the first introductors of this sin, and the only usurers of this Kingdom, whereby his Majesty's liege people received much mischief and disinherison, and many offences arose, and therefore for the honour of God, and common profit of his people, it was ordained, That no jew should from thence forth take any thing to usury of any Christian, upon any Lands, Rents or other things, and if any jew did offend against that ordinance, he should lose his loan, be punished at the King's pleasure, and the Christian should recover his gage, viz. his lands, rents, or other things. This jewish leprosy had so spread itself in this Kingdom, that it grew even excessive amongst Christians, for redress whereof, it was provided 3. Hen. 7.6. That all unlawful chevisance and usury should be extirpate, and Brokers of such bargains, should be set on the pillory, be half a year imprisoned, and pay twenty pound. That Statute and an other of 11 H. 7.8. were repealed by 37. Hen. 8. ca 9 And provision made, that no person by any covin, engine or other deceitful way should take (above ten pounds in the hundred) interest for one whole year, upon pain to forfeit the triple value of the wares, marchandizes, and other things so bargained etc. imprisonment of body and fyne and ransom at the King's pleasure. This Statute being repealed 5. Ed. 6.20. was fully revived 13. Eliz. ca 8. And further enacted, that all bonds, contracts, and assurances, collateral, or other to be made for payment of any thing reserved above the rate of 10. pound in the hundred, should be utterly void, and all Brokers, solicitors, and drivers of usurious bargains, above that rate, to be judged, punished, and used as Counsellors, Attorneys, or Advocates in any case of Praemunire. And for that all usury being forbidden by the Law of God, is sin and detestable, It was further enacted, That in all usury, loan, and forbearing of money at 10 pound in the hundred and under, the offender should forfeit so much as shall be reserved over and above the principal, to be recovered and employed as is limited for forfeitures by the Statute of 37. H. 8. And not to be punished by the Ecclesiastical law or otherwise. This law was made perpetual by the Statute of 39 Eli●. 18. The Statute of 21 jac. cap. 17. which by 3. Car. cap. 4. is made perpetual, 11 jac. ca 7 doth restrain the taking of any more, than after the rate of 8. in the hundred, for one whole year, under pain of forfeiture of the triple value of the moneys, wares, etc. and all bonds, contracts, and assurances to be void. The Scriveners, Brokers, Drivers, and Solicitors, to forfeit 20 pound, and imprisonment for half a year, if they take above 5. shillings for the procuring or driving the loan, or forbearing the same lent after the rate of an hundred pound for one year, or above 12, pence for making or renewing the bond. These two last mentioned Statutes do respectively stand and remain in their proper and peculiar force, according to their several restrictions and limitations, yet none of them do abrogate the inquiry of it as an offence of the common Law, in the Sheriffs Turn or Court Leet, but the Steward cannot inquire nor inflict the forfeitures, limited by the Statutes, because thereby no power is given unto him. Forestallers. IF any buy, or cause to be bought any merchandise, victual or other thing, coming by land or water towards any fair or market, to be sold in the same, or toward any City, Port, Haven, Creek, or road of this Realm or Wales from any part beyond the Sea to be sold. Or shall make any bargain, contract or promise for the having or buying of the same, or any part thereof, before it shall be in the market, fair, city, port, etc. ready to be sold. Or shall make any motion by word, letter, message, or otherwise, to any person for enhancing the price, or dearer telling of any of the said things. Or else dissuade, move, or stir any person coming to the market, or fair, to forbear the bringing of any of the things to any fair, market, cuie, etc. to be sold, shall be judged a Forestaller. Regrator. IF any shall Regrate or get into his possession, in any fair or marked, any Corn, Wine, Fish, Butter, Cheese, Candles, Fallow, Sheep, Lambs, Calves, Swine, Pigs, Geese, Capons, Hens, Chickens, Pigeons, Coneys, or other dead victuals whatsoever, that shall be brought thither to be sold, and doth sell the same again, in any fair or market holden in the same place, or in any other fair or market within four miles thereof, shall be reputed a Regrator. Engrosser. IF any get into his hands by buying, contracting, or promise taking (other than by demise, grant, or lease of Land, or tithe) any corn growing in the si●l●s, or any other corn, butter, cheese, fish, or other dead victual within England, to the intent to sell the same again, shall be taken an unlawful Engrosser. They are all linked together in this Statute, and the punishment of them equal, viz. 1. Offence, imprisonment for two months without basle, and forfeiture of the value of the goods bought, etc. 2. Imprisonment for one half year, and lose the doable value of the goods, etc. 3. Offence, pillory in the place where he dwells, forfeiture of all his goods and cattles, which he hath to his own use, and imprisonment during the king's pleasure. By this Statute, no express power is given to Leets to inquire of these offences, or any of them, whereupon much doubt hath arisen, and much neglect ensued, in not charging the suitors to present the offenders, and forestallers, and Regrators at Turns and Leets, the rather for that M. Kitchen in his book of that subject, and in the particulars of the charge, doth not once mention those offences, but that they were and are offences at the common Law, and inquirable and punishable in Turns and Leets will be very manifest. 〈◊〉 Leet, so. Fitzh. in his Court Leet, so 86. printed A.D. 1559, after the Statute of 5 Ed. 6. doth charge the inquiry of Forestallers and Regrators. And the Statute 5. Ed. 6. doth not abridge any other power or jurisdiction, as appears by a clause in the same Act, viz. If any should be punished by virtue of that Act, for any thing therein mentioned, he should not otherwise be vexed or put to any pain for that thing. It will not be amiss here, to take a short survey of the ancient ordinances of this Kingdom, which were but declarations of the common Law. The old Law, entitled, Indicium Collistrigii, 51 Hen. 51 Hen. 3. provides that inquiry be made de forstallariis, who before the due hour did buy any thing, contrary to the ordinance of the town and market. Or do go out of the town to meet with any vendible things, and do buy them extra villam, that they might sell them in the town to Regrators, at a dearer rate, than they which would have brought it into the Town. That law is seconded with another, entitled Statut. de pistoribus & braciotaribus etc. & de Forstallariis (being repealed only touching the assize of wine by 21 jac.) by which the King commands, that no forestaller should dwell in any town, and renders the reason. Qui pauperum est depressor manifesle, & totius Communitatis & patriae publicus inimicus, An oppressor of the poor, and an enemy of the country, and hereby the 1 Conviction is a grievous amerciament. 2 judgement of the Pillory. 3 Incarceration and redemption. 4 Abjuration of the Town. And the like against those that should counsel or countenance them, and it was to be inquired, if any Steward or Bailiff, did for any reward remit the judgement of the pillory, by which it is plain, that Stewards of Leets had power to inquire of this offence. By the Statute of 25 Ed. 3, cap. 3, all forestallers of Wines, and all other victuals, wares, and marchandizes, that comes to the towns of England by land or by water, being attainted at the King's suit by indictment, or in any other manner, shall forfeit to the King the things forestalled, if they were full bought, But if agreement were only made by earnest, than the value of the things so forestalled, and two year's imprisonment or more, at the Kings will, if the buyer had not whereof to pay it. By all those laws it was not perfectly known what person should be taken for a forestaller, etc. and therefore a full declaration was made by the latter Statute of 5 Ed. 6.14. These Monopolists of late years, began to swarm and muster themselves against the Common weal, and in time like the frogs of Egypt, would have overrun and covered the whole land, and without a scarcity would have brought a dearth amongst us, if his now Royal Majesty by his Proclamation, orders and directions, Dated 28. December, 1630, afterwards put in execution against some principal engrossers of corn and grain by two several censures and decrees, in the high court of Starchamber, Mich. 7. Car. had not ministered a timely prevention, by which directions a strict inquiry of Forestalles and Regrators is required in a Court Leet. There follow several sorts of frauds, deceits, and conspiracies, as well in making, selling, and uttering of victual and wares, which concern the alimony and sustenance of the body, as also in trades of mercimony, and manufacture, and in artificers and labourers, all which are inquirable at Leets. Assize of Bread. BRead is the principal of all kind of victual, it is the staff of life, and the life of the poor, in sacred Scripture the commination of famine, is denounced by breaking the staff of bread, Levit. 26.26. If therefore any Baker shall make and put to sale any bread which is not of good and sufficient weight and assize, according to the ●ate and prices of corn and grain, in the markets adjoining, or is not wholesome for the body of man. Brewers and Tiplers. IF Brewers and Tiplers do not keep and observe the assize of ale and beer, and make it good and wholesome for the body of man, or do drefuse to suffer their Ale and Beer to be assayed an tasted by the officer, on that behalf appointed, before they set the same to sale To the end he may be the better directed where to search, Every licenced Tipler ought to have a Bush or alestake at his door. Cups, Glasses. IF any Tiplers sell by glasses, cups, or dishes, or any measure which are not of due assize, and lawfully sealed, whereby the poor labourer and wayfaring passenger, (for whose relief and comfort such persons are allowed to tipple) be scanted and defrauded. By the ancient Law of judicium Collist. 51. Hen. 3, before mentioned, If a Baker or Brewer be convict for not observing the assize of bread and ale, the first second and third time, he shall be amerced according to his offence, if it be not over-grievous, but if it be grievous and often, Si grave fecerit delictum & pluries, & castigari noluerit, tunc patiatur judicium corporis (scil.) Pistor collistrigium, & brasiatrix trubicetum vel castigatorium, A Baker to the Pillory, and a brewer to the Tumbril, or other correction, etc. Butchers, etc. IF any Butchers, Fishmongers, Regrators, 13 Edw. 3.6. Ostlers, Brewers, Bakers, Pulters, or any other sellers of any manner of victual, do not sell the same for reasonable prices, having regard to the prices in the places adjoining, so that the same sellers have moderate gains and not excessive, reasonably to be required (according to the distance of the place from whence the said victuals be carried) shall pay double for the same to the party damnified, or in default of him, to any other that will pursue on this behalf. 13 Ed. 3.6. Victuallers. BY the Statute of 13 Ri. 2.18. For victuallers, 13 ●●h. 2. 1●. it was accorded, that they should have reasonable gains, according to the discretion and limitation of the Justices and no more, upon pain to be grievously punished, according to the discretion of the said justices, where no pain was limited in certain before that time; and that Sheriffs, Stewards of franchises, and all others that have assize of bread and ale, and the correction thereof, shall take no amerciament or fine for any default, touching the assize, to spare any bodily punishment. In the time of Edw. 4. certain persons for their own profit, did procure Letters Patents of the King to be surveyors and correctors of victuals, within certain Cities, Boroughs, and other places, and by pretence thereof did commit divers extortions and oppressions, to the damage of the people, and derogation of liberties and franchises, which Letters Patents by the Statutes of 12 Edw. 4. ca 8. were made void. But for that the dearth and plenty of Cheese, Butter, Capons, Hens, Chicken, and other victuals, necessary for men's sustenance, were many times enhanced and raised by the covetousness of the owners, by occasion of engrossing and regrating the same, 25 Hen. 8 cap. 2 It was 25 H. 8, cap. 2. provided, that upon complaint of any such enhancing, the Lord chancellor of England, and others therein named, should have power to see and tax reasonable prices upon such kind of victuals, to be sold in gross or by retail, and Proclamation to be thereof made under the great Seal, and those prices so taxed to be observed upon such pains as by the said Proclamation should be declared. But this Act should not be hurtful to Majors, Sheriffs, Bailiffs, or other officers of Cities, Boroughs, or Townes-corporate, nor to any other having authority to set prices, etc. Nota, the power of a Leet is not abridged by any of these Statutes, but rather declared and explained. Horsebread, etc. IF any Baker in any City, Town corporate, 〈◊〉 Jar. ●1 o● Market town, shall make or sell any Horsebread, which is not of lawful assize, and reasonable weight, after the price of Corn and Grain in the market adjoining. Or if any Ostler or Inholder, dwelling in any City, etc. shall make horsebread in his hosterie or without. Or shall not sell their horsebread, and their hay, oats, beans, pease, provender, and all kind of victual, both for man and beast, for reasonable gain, having respect to the prices in the markets adjoining, without taking any thing for litter. Or if any Inholders of Ostlers, dwelling in any throughfare, town, or village, (being no city, town corporate, or market-town, where any common Baker having been an apprentice at that trade by the space of seven years is dwelling) who may by this Statute make horsebread in his house, shall not make it sufficient, lawful, and of due assize, according to the said prices of grain and corn, Or shall offend in any thing contrary to this act. All stewards of Leets have power to inquire, hear, and determine all the said defaults and offences of the said Ostlers and Inholders. And the punishment to be insticted, is for the 1 Offence to be fined according to the quantity of the offence. 2 Conviction, imprisonment for one month without bail, etc. 3 To stand in the pillory without redemption of money. 4 After judgement of the pillory given, he shall be forejudged from keeping any Inn again. Unwholesome or corrupt Victual. IF any Butchers, Fishers, or other Victuallers, do sell any manner of corrupt victual, not wholesome for the body of man. If any butcher shall sell carnes sustentatas vel de morte morina, any contagious flesh, or that died of the murrain, 51 Hen. 3. Or shall kill and sell the flesh of any Bull unbaited, or of any cattle killed suddenly upon the drift, or with their breath do puff and blow up meat, whereby it proves deceitful in the sale, and may be unwholesome, it is presentable. Flawing of Hides, etc. NO Butcher by himself or by any other person, 1 jac, ca 22. shall gash, slaughter, or cut any hide, of any Ox, Bull, Steere, or Cow, in flaying thereof or otherwise, whereby the same be impaired or hurt, under pain of 20 pence for every hide so gashed, etc. 1 jac. c. 22. No Butcher shall water any hide (except only in the months of june, july, and August) nor shall offer or put to sale any putrified or rotten hide, upon pain of every hide so watered, putrified and offered to be put to sale, three shillings four pence. Calves under five weeks old. NO Butcher or other person or persons shall kill any Calf to sell being under five weeks old, upon pain for every Calf so to be killed and sold, six shillings four pence. No Butcher shall by himself or any other person use the craft or mystery of a Tanner, during the time that he shall use the craft of a butcher, upon pain for every day six shillings eight pence. Cooks. INquirie is to be made of Cooks that seethe flesh or fish, with bread or water, or any otherwise, that is not wholesome for man's body, or after that they have kept it so long, that it loseth its natural goodness debitam naturam) and then reseeth it and sell it, 51 Hen. 3. Malt-maker. THe Maltmaker (the only Sire of an unruly Alchouse, 21 Edw. 6.10 revived 27 Eliz. 14. by his excess in making of too much, Continued 1 jac. 25, Continued 21 Jac. 28, Continu●● 3 Car. 4. and his slights and deceits in his hasty making of bad and corrupt malt, is, as ill a member as any, his frauds and slights are in the preamble of this Statute described to be such in the making and drying of his malt, that no wholesome drink for man's body could be thereof made, to the peril and danger of his Majesty's subjects, the loss and decay of the Common wealth, and the utter impoverishment of Brewers, for that they could not make so much of fifty quarters of malt, being evil dried and made, as they could of forty good. If therefore any person shall make any barley malt (the months of june, july, and August only excepted) but that it shall have in the Fat and Floor, steeping and sufficient drying thereof three weeks at the least, and in those months 17 days at the least (without which it cannot be wholesome for man's body) shall forfeit for every quarter of Barley malt, two shillings. Or if any shall mingle any malt not being well and sufficiently made, or being made of mow-burnt or spired barley with other good malt, and put the same to sale, shall forfeit for every quarter, two shillings. If any person shall put to sale, any malt not sufficiently and well trodden, rubbed and fanned whereby there may be conveniently fanned out of one quarter thereof, half a peck of dust or more, every such person shall forfeit and lose for every quarter so put to sale twenty pence. One moiety of those forfeitures, are to accrue to the King, and the other to the party that will sue for the same, to be sued or presented within one year. Of these abuses every Steward of Leets hath power to hear, and determine, aswell by presentment of twelve men, as by accusation or information of two honest witnesses, and the Bailiffs and Constables of every borough, market town, or other town, where such malt shall be made or put to sale within any of the said towns, and finding the same, with the advice of one justice of peace, shall cause the same to be sold at reasonable prices, and under the price of the market, as to his discretion shall seem expedient. Miller's. IF any Miller take excessive toll, he ought to take but the twentieth or twenty fourth grain according to the custom of the place, and to the strength of the water, or if he changeth or altereth the grain which he hath to grind, presentable. Conspiracies in Butchers. IF any Butchers, Brewers, Bakers, Poulters, 2, 3 Ed. 6. c. ●● Cooks, Costermongers, or Fruiterers, not contented with moderate and reasonable gain, shall conspire, covenant, promise, or make any oaths to sell their victuals but at certain prices. Or if any artificers, workmen, or labourers, do conspire, covenant, etc. not to make or do their works but at a certain price and rate, or shall not enterprise or take upon them to finish, what another hath begun, or shall do but certain work in a day, or shall not work but at certain hours and times. Every person so offending being lawfully convicted thereof, by witness, confession, or otherwise, shall forfeit as followeth. 1 Offence, ten pound to the King (if he have to pay) within six days after his conviction, or twenty day's imprisonment, with bread and water for his sustenance. 2 Twenty pound to the King (if he have to pay) within six days, or else the punishment of the Pillory. 3 Forty pound etc. payable within six days, or else to sit in the Pillory, lose one of his ears, and at all times after to be taken for a man infamous, and his oath not to be credited in any matters of judgement. And if such conspiracy etc. be had and made by any society, brotherhood, or company of the victuallers above mentioned, with the presence or consent of the more part of them, that then immediately upon such act of Conspiracy, covenant or promise, over and besides the particular punishment, before appointed for the offender, their corporation shall be dissolved to all intents, constructions, and purposes. False weights and measures. IF any keep and use any false measures of bushels, gallons, els, yards, or false weights, balances and pounds. Double weights. etc. OR if any use double weights and measures, the greater to buy with, and the lesser to sell with, to deceive the people, in Mag. Car. ●. 26. one special branch for the uniformity of weight and measure, is in these words, S. una sit mensura vini per totum Regnum nostrum, una mensura cervisiae, una mensura bladi, et de ponderibus sicut de mensuris, Also by the foresaid Stature of 51 Hen. 1. It was to be inquired, if any sold by one measure, and bought by another, or if any did use false els, weights, or measures, which was confirmed and enlarged by 27. Ed. 3.10. It is God's law enjoined by Moses unto the people, You shall do no unrighteousness in judgement in meet yard, in weight or measure, just balances, just weights, a just ephah, and a just hinne shall ye have Levit. 19 vers. 35.36. Wines. THe Statute of 7 Ed. 6. 7 Ed. 6, c. 5. ca 5. entitled an Act made to avoid the great and excessive prices of wines, for so much as doth concern the prices of wines, or the restraining of having wines in men's houses is repealed 1 jac. 25. But no person shall keep any Tavern, or sell or utter by retail, by the gallon, or less, or greater measure in any place, any Gascony, Guyon or French, nor any Rochel wines, nor any other wine or wines, in any place, except it be in cities, towns corporate, Boroughs, Port towns, or Market towns, or in the towns of Gravesend, Sittingborne, Tuxford and Bagshot, upon pain to forfeit for every day so offending ten pound. No person shall sell wines by retail in any City, borough etc. unless he be assigned by the head officers, and the most part of the common Counsel, Aldermen, etc. for the time being of such City, etc. by writing under the common seal. Nor in any City or town etc. not corporate, or in the towns of Gravesend, Sittingborn or Bagshot, unless he be appointed by all or most part of the justices of peace of that Shire, at the general Sessions of the peace, by writing under their several seals, under pain for every day five pound. And if any having authority, etc. shall nominate and appoint, more or greater number of Taverners, or Wine-sellers, than by the Statute is limited to be assigned in several places, shall forfeit for every such nomination or appointment five pound. And none shall sell or retail any kind of wines to be drank or spent in his mansion house or other place in his tenure or occupation, by any colour, craft, engine or mean, upon pain to forfeit for every such offence ten pound. The Steward in every Leet and the Sheriff in his Turn (inter alia) have power to inquire by the oaths of twelve lawful men, of all offences done contrary to this Act, and every inquiry and presentment so taken, shall be of such force, as if it were had or taken in the King's bench, and the foresaid penalties upon any such presentment (and no bill, plaint, action or information thereof commenced in any the Courts of Record) shall be divided equally in two parts, whereof one to be to the King, and the other to the poor of the town or place, etc. To be sued, presented &c. within one year. Deceits in Tradesmen. IF any Tradesman or Artificer whatsoever, doth use any fraud, shift, slight, or deceit in the making of his and their ware and chaffer, and do not make the same as they ought whereby the people are deceived. Learned Lynwood, titul. de haereticis ca finaliter, sets forth seven sorts of Mechanic arts or trades, and in the first sort he ranks all those qui circa pilos et lanam, pelles et carnes operantur, those that meddle with hair or wool, hid or flesh, amongst whom are butchers, Tanners, Curriers, Shoemakers, or cordwainers and others cutting of Leather, all comprised in the Statute of 1 jac. ca 22. the butchers I have singled out already in their due place. Clothmakers and Labourers thereof. IN the occupations of Clothmaking the laborers thereof were driven to take a great part of their wages in pins, girdles, and other unprofitable wares, and had delivered unto them wools to be wrought by very excessive weight whereby both men and women were discouraged of such labour. It was therefore ordained, That all clothmakers should pay to the carders, spinsters, and all other labourers in any part of that trade lawful money for all their lawful wages. And should also deliver wools to be wrought according to the faithful delivery, Repealed 5 Eliz. ●. and due weight thereof, upon pain to forfeit to every labourer, The triple value of the wages so not paid. And for every default in delivery of excessive and unlawful weight six pence. That every carder, spinster, weaver, fuller, shereman and dyer shall duly perform his duty in his occupation, upon pain of yielding to to the party greeved double damages. That every fuller in his craft of fulling, tasselling, or rowing of cloth, shall exercise and use tazels and no cards deceitfully impairing the same cloth, upon pain to yield to the party grieved double damages. Every Steward of Wapentakes and Leets (out of any city, borough or town, where no Mayor or chief officer is) shall have power to hear and determine the complaints of every clothmaker and labourer, by due examination of the parties, and for nonpayment of the said duties forfeiture and damages, to commit the offenders to the next Gaol, there to remain until they pay the same. And shall also have power upon infor mation of any other person which is not grieved, to cause the party to come before him, for offending this ordinance, and if upon examination or other due proof the party be found guilty or defective, he shall forfeit for every time to the King or Lord of the Leet three shillings four pence to be recovered in manner aforesaid, without paying any fee or reward. Tanners. Who may be a Tanner. NO person shall tanne any leather, 1 Jac. c. 22 or use, or have any profit of or by the said mystery, unless he had a Tanhouse at the beginning of that Parliament And except such as have been or shall be brought up as apprentices, or covenant and hired servants, by the space of seven years in that mystery, and except the wife and such sons of a Tanner, as hath been brought up, and used the said trade by the space of four years, or the son or daughter of a Tanner, or such person who shall marry such wife or daughter, to whom he hath or shall leave a Tanhouse and fats, upon pain of forfeiture of all the leather so tanned, or whereof he shall receive any profit, or the just value thereof. No Tanner shall use the mystery of a Shoemaker, currier, butcher, or any other artificer, useing, cutting, or working of leather; upon pain to forfeit all the Hides and Skins so wrought, or the value thereof. None shall buy, contract for, or bespeak any rough Hide or Calf's skin in the hair, but only Tanners, or tawers of leather, except salt hides, for the necessary use of ships. Forfeiture of the Hides and skins or the just value. None shall forestale any Hides coming towards any fair or marker, nor buy any hid but in open fair or market unless it be the hyde of a beast killed for a man's own private provision. Forfeiture for every hide so bought six shillings eight pence. This Law provides against the insufficient ranning and drying of leather, and so much as shall not be throughly tanned or dried, to be out our by the oversight and direction of the tryers and searchers, etc. None (to overhasten the tanning of their leather) shall set their fats in tanhills or other places where the woozes or Leather may take any unkind heats, nor put any leather into any hot or warm woozes, not tan any hides, calve skin or sheep's kin with any warine woozes upon pain For every offence ten pound, and to stand upon the Pillory three several market days. This law gives remedy against regrating and engrossing of Oaken bark before it be stripped, or after to sell the same again upon pain, To forfeit all such bark, or the value thereof. Curriers. NO Currier shall exercise the mystery of a tanner etc. or other artificer, useing cutting of leather during the time he shall use the mystery of a Currier upon pain, To forfeit for every hide or skin six shillings eight pence. He shall not curry any leather in the house of any Shoemaker or other person, but only in his own house, situate in a corporate or market Town. Nor shall curry any kind of leather (except it be well and perfectly tanned) nor any hyde or skin being not throughly dry after his wet season, in which season he shall not use any stolen, urine, or any other deceitful mixture, way, or means to corrupt or hurt the same. Nor shall curry any leather meet for utter sole-leather with any other stuff than hard tallow, nor any less of that than the leather will receive. Nor any kind of leather meet for over leather and inner soles, but with good and sufficient stuff, being fresh and not salt, and throughly liquored, till it can receive no more. Nor shall burn or scald any hide or Leather in the currying, nor shall shave any Leather too thin, nor shall gash or hurt any leather in the shaving or by any other means, upon pain To forfeit for every offence (other than in gashing, or hurting in shaving) six shillings eight pence, and the value of every skin and hid marred by evil workmanship. And for every offence in gashing etc. double so much to the party grieved, as the Leather shall be impaired thereby, by the judgement of the Wardens, etc. That the leather to be brought by any artificer which is or shall be a cutter of leather, or by his servant, with good and sufficient stuff to liquor the same, shall be liquored and curried perfectly with convenient speed not exceeding eight days in summer, and sixteen days in winter, after it be taken in hand upon pain To forfeit to the party grieved for every hide and piece of leather not well and speedily dressed ten shillings. Cordwayner or Shoemaker. NO shoemaker shall make or cause to be made any Boots, shoes, buskins, startups, slippers or pantofles, or any part of them of English leather wet curried (other than Dearskins, Calf skins or Goat skins, made or dressed like unto Spanish leather) but of leather, well and truly tanned, and curried in manner aforesaid; or of Leather well and truly tanned only, substantially sewed with good thread, well twisted and made with wax, well rasonned, and the stitches hard drawn with hand leathers, without mingling over leathers, viz. part of the over leather being of Neat's leather, and part of Calf's leather. Nor shall put into Shoes, Boots, etc. any sheeps-skin, bull or horse-hide-leather, nor into the upper leather of any shoes, startupps, or pantofles, or into the nether part of the boors (the inner part of shoes only excepted) any part of any hide, called the wombs, necks, shank, flank, poll, or cheek. Nor shall put into the utter sole any other leather, than the best of the ox or steer hid, nor into the inner sole any other leather than the wombs, neck, poll or cheek, nor in the treswels of the double sole shoes, other than the flanks of the hides aforesaid. Nor shall make or put to sale, in any years between ultimo Sept. and 20. Apr. any shoes, boots, etc. meet for any person to wear exceeding the age of four years, wherein shall be any dry English leather, other than Calf or Goatskins made or dressed, like unto Spanish leather, or any part thereof. Nor shall show, to the intent to put to sale, any boots, shoes, etc. upon the Sunday, upon pain To forfeit for every pair of shoes, boots, etc. made, sold, showed or put to sale, contrary to this act, three shillings four pence, and the just and full value of the same. Searchers and Sealer's. ALL Mayors, Bailiffs etc. and all Lords of liberties, fairs or markets, out of the compass of three miles of London, shall upon pain of forty pound (whereof one half to the King, the other to the party that will sue for the same) for every year that they make default, shall yearly appoint and swear, two, three, or more sufficient and skilful men to be searchers and sealer's of leather within their limits, and one of them shall keep a mark or seal prepared for that purpose, and shall seal such leather as they find sufficient and none other. That it shall be lawful to any of them to seize all such leather and ware as shall be insufficiently tanned, curried, made, or wrought contrary to any provision in this act, and shall retain the same, until it be tried as hereafter is mentioned, viz. That every such Mayor, etc. or Lord of liberty, or his sufficient deputy, after notice given to him of any such seizure, shall with all convenient speed, appoint six honest and expert men, to try whether the same wares so seized be sufficient, according to the intent of this Statute or not, the same trial to be made openly upon some market day, within fifteen days at the farthest, next after such seizure, upon the oaths of the tryers. To forfeit for not appointing such tryers, sive pound. The tryers if they do not proceed and do their duties therein without delay, do forfeit for every default sive pound. Every searcher and sealer of leather which shall resuse with convenient speed to seal any lawful leather, shall for every such offence forfeit forty shillings. For receiving any bribe, or exacting any fee for execution of his office, (other than is limited by the statute, for searching, sealing, and registering of leather) 20 pound. For refusing after election to execute the office 10. pound. Stewards of Franchises and Leets have power to hear and determine all the offences against this Act, and also by their discretions to examine all persons suspected to offend this Statute, or any parcel thereof. Cloth makers, Fuller's, Sheeremen, Tailors, Shoemakers. IF any of those trades shall retain to work in any of their trades any unmarried person as a journey man to work by the day, ●. Ed. 6, 22. or tail work, or by the great, for any less time, than for one whole quarter of one whole year, the person or persons offending, shall suffer imprisonment for whole month, and forfeit forty shillings for every offence. If any jou roey man of any the said mysteries being required by any persons useing the said trades, This is fully repealed, by 5. Eliz. c. 4. or any of them to serve by the quarter of a year, half a year, or whole year, upon such reasonable wages, as between them shall be agreed, and in case they cannot accord, then for such wages as shall be adjudged and decreed, by one justice of peace, Mayor, Alderman, Bailiff, Portreeve, Constable or Tethingman of the Shire, City, Town, Borough, Village, Hundred, Wapentake, or Tything, where any such journeyman shall be required, and shall refuse to serve, shall suffer imprisonment for one whole month, and forfeit for every time 20. shillings. All and every the said Tradesmen that shall have three apprentices in any of the said occupations, shall keep one journeyman, and forevery other apprentice, above the number of three, one other journeyman, upon pain of every default ten pound, the one half to the King the other to the party that will sue for it. All Stewards of Leets (inter alios) hath power to punish and correct all and every offenders, contrary to the tenor of this, according to such presentments as shall be made before them. The second Mechanic art of M. Linwoods' division is Armatura, and Sub hac arte (saith he) continetur ars Sagittariorum & Balistariorum. And they fitly succeed here, to be inquired of in their due order. Artillery. FOr maintenance of sagittary Discipline (an exercise famous and honourable to this Kingdom for many victorious battles) and for debarring and repressing of unlawful games, 33 H. 8. c. 9 the Statute of 33. Hen. 8. ca 9 was ordained, which provideth, that such as be of tender age, be brought up in the knowledge of Shooting, and every person shall provide and have in his house, for every man child of the age of seven years and above, till he come to the age of seventeen years, a bow and two shafts to learn and induce them, under pain (if they want them one month together) of six shillings eight pence, incurred against the master. After seventeen years every such young man shall provide a bow and four arrows at his own cost, and if under threescore years taking wages, and being able to shoot, he shall want a bow and four Arrows by the space of one month together, shall forfeit for every such default six shillings eight pence. No man under the age of 24. years shall shoot at a standing prick, except it be at a rover, whereat he shall change at every shoot his mark, upon pain for every shoot four pence. Nor at any mark of eleven score yards or under, with any prick, shaft, or slight, under pain of six shillings eight pence for every shoot. That Butts shall be made in every City, Town and place by the inhabitants, according to the Law of ancient time used, and maintained and continued by them, upon pain for every three months 20 shillings, Stewards of Leets have power to hear and determine the offences, and at their discretion, to examine all persons not having bows, shifts and arrows. Unlawful Games. THis good Law, 〈…〉 as it enjoins a lawful, so it inhibiteth an unlawful exercise, especially unlawful games, which are engendered and ●●rsed by idleness, the mother of all vice, the 〈◊〉 of youth, decay of trades, and thine of all common weal. It is therefore enacted, That none for his gain and ●●ere, shall keep or maintain any common h●●●●alley, or place of Bowling, Tennis, Dicing, Carding, or any other manner of game prohibited by any Statute, nor any hereafter to be invenced, found or had ●●on pain for every day 40. shillings. Every person haunting any of the said houses and places, and there playing, forfeiteth for every time, six shillings eight pence. All Constables and Bailiffs, etc. shall make search every month for unlawful games, as well within franchises as without, or in default thereof, they forfeit for every month not executing the same forty shillings. No artificer, husbandman, handicrafts man, apprentice, journeyman, or servant of artificer, mariners, fishermen, waterman, or any servingman, shall at any time play, at any the said unlawful games but only in the time of Christmas, servants to play in their master's houses, and in their presence. No person shall bowl in any open place, out of their garden or orchard, upon pain of six shillings eight pence. But noble men, and every one that may dispend in lands or other profits to the yearly value of an hundred pound, may permit their servants and others coming to their houses, to play within the precincts of his houses, gardens or orchards, at cards, dice, tables, bowls, or tennis, and shall not incur the penalty of this Statute. The forfeiture happening within the precinct of any franchise or Leet, the one moiety shall be to the Lord, the other to the p●●ty, that will sue for the same by any action, etc. and out of the liberty of a Leet, the 〈◊〉 moiety to be to the King, etc. Handguns and Crossbows FOr that divers malicious and ill disposed persons did shamefully commit divers detestable murders, robberies, felonies, 33 〈◊〉 riots and routs with crossbows, little short handgu●s, and hagbuts, to the great fear and danger of his Majesty's Subjects: And the laudable exercise of the long bow was lately laid a part, which had be●ne the safe guard and def●nce of the Realm and an inestimable dread, and terror to the enemies of the same. It was ordained, That no person unless ●●e could dispend in lands or other profits, an hundred pound per annum, should shoot in any crossbow, handgan, hagbut, or demibanke, or keep any in than houses or elsewhere, upon paint for every time 10. pound. Nota, S john's Case Co. l. 5. so. 71. It was adjudged that a dag and pistol were comprehended under the word (handgunne) though not expressly memioned, and that stonebowes were prohibited, swell as crossbows. No person shall shoot in, carry, use, or have in his house or elsewhere any handgun, other than such as shall be in the stock and gun the length of one yard, nor any hagbut, demihauke other than such as shall be in stock and gun three quarters of a yard, upon pain of ten pound. Every person having lands, fees, annuities, or offices of the yearly value of an hundred pound, may seize and take every such Crossbow, and keep it to his own use, and also seize every such handguns, etc. being shorter than before is appointed, and to break and destroy the same within 20 days after such seizure, upon pain of forty shillings for every gun so seized and not broken, No person unless he have an hundred pound per annum (as aforesaid) shall carry or have in his journey, in the King his high way, any cross-bow bend, or gun charged, except it be in time and service of war, upon pain of ten pound, None shall shoot in any handgun etc. at any thing at large, in any city, borough, or market town, or within a quarter of a mile of any of them (unless at a butt or bank of earth, in place convenient, or for defence of his person, or house) upon pain of ten pound for every shoot. If any master command his servant to shoot in any crossbow, handgun, etc. at any dear, fowl, or other thing, except it be at a bank or butt of earth, or in the time of war, he shall forfeit 10. pound. But some persons for exercise, and some places for defence, and other purposes, are dispensed with by the Statute for useing and keeping of handguns etc. Stewards and Bay liffes of Leets have power to inquire, hear, and determine all the offences, so that no less than ten pound fine, be assessed upon every presentment and conviction. The one moiety of every fine to be paid and levied to the use of the King, and the one half of the other moiety to the Lord of the Leet, and the other half to the party that will sue for it by action, etc. A second jury to inquire of the concealments of the first, and if any concealments be presented, every of the first jury to forfeit twenty shillings, one moiety to the Lord by distress or action of debt, the other to the party that will sue, etc. Other Laws here inquirable, which concern the preservation of Fry of Fish, and of certain Fowl and beasts of Warren, as Pheasant, Partridge, Hare, and Coneys, and some beasts of chase, etc. Dear. Fry of Fish. THe preamble of this Statute sets forth the destruction of spawn, ● Eliz 18. Made perpetual 3 Car. Reg. c. 4. except the proviso for the River of Tweed etc. fry, and young breed of fish in rivers and streams, salt and fresh, insomuch as in divers places swine and dogs were fed therewith, to the hindrance and decay of the common wealth. It was therefore enacted, that none should take and destroy any young brood or fly of fish, in any waters, brooks, streams, or rivers, salt or fresh, with any manner of net, or any ways or means whatsoever, nor take or kill any Salmon or Trout out of season, being kepper or shedder Salmon or Trout. None shall take in any rivers or places aforesaid any Pickorell, not being in length 10 inches fish or more, Salmon 16. inches fish and more, Trout 12. inches or more, Baitell 12. inches or more. None shall take any fish with any manner of net, trannell, or any other engine or device (angling excepted) but only with net, or tranwell, whereof every mesh shall be two inches and half in breadth. But where smelts, loches, mynnetts, bulhead, gudgeons and eyes have used to be taken, it shall be lawful to use any such nets and means, as had been thentofore used for that purpose, so as no other fish be taken, killed or destroyed therewith. The forfeiture for every time is 20. shillings, the fish taken, and the nets, trannels, &c, to be to the use of the Lord of the Leet for ever, and to be levied, as amerciaments for affrays in Leets have used to be. Steward of Leets to give these offences in charge, or else to forfeit 40. shillings, and he may impannell a second jury, to inquire of the concealments of the first jury, and it any concealments be found, every of the first jury shall forfeit to the Lord of the Leet 20 shillings, to be levied as before. This Statute is perpetuated 3. Car. 4. except the proviso for the River of Tweed, etc. Pheasants and Partridges. THis Statute was made to prevent the destruction of the game of Pheasants and Partridges, 3 Eliz. 10.2 by taking of them by day and night with nets and other engines. As also the spoil of corn and grass, by untimely hawking, in the beginning of harvest. None therefore shall take, kill, or destroy any Pheasants, or Partridges, with any nets, engines, or other devices whatsoever in the night time, upon pain of forfeiture for every Pheasant twenty shillings, every Partridge ten shillings, to be paid within twenty days after conviction. Or upon nonpayment, to have one month's imprisonment, and to be bound by some justice of peace for two years, never to destroy any such game, contrary to this Act. The moiety of the penalty to be to the Lord of the liberty, and the other half to him that will sue, etc. and if the Lord shall dispense with licence, or procure any such taking or killing, etc. then such penalties to be to the poor of the parish, to be levied and recovered by the Churchwardens or any of them. None shall Hawk or Hunt with Spaniels in any ground where Corn or other grain shall then grow (except his own ground) when any eared or codded corn, or grain is standing, before it shall be shocked, cocked, hiled or copped, upon pain of 40. shillings to the party grieved, unless he consent to it, to be levied and recovered in manner aforesaid. Stewards of Leets have power to hear and determine all offences contrary to this Act. This Statute is enlarged 1 jac. 27. and 7. jac. 11. Tracing of Hares. FOr preserving the game of hunting of Hares which was used and exercised by the King and other noble men. 14 Hen. 8.10. It was provided, that none should trace, destroy and kill any Hare in the snow, with any Dog, Bitch, or otherwise, upon pain to forfeit to the Lord of the Leet for every Hare, six shillings eight pence, after inquisition thereof found by the Steward. This Statute is much enlarged 1 jac. 27. Breaking the head of any Pond. IF any by day or night shall break or destroy the head or dam of any pond, pool, 5 Eliz 21. mote stagnes, stews or several pits, within which the Lord of the Leet hath fish, to the intent to destroy, steal, and take away the said fish, shall pay triple damages to the Lord, suffer imprisonment three months, and to find sureties for the good abearing for seven years. Hunting of Dear. IF any shall chase out, hunt, or kill any dear, out of any Park or enclosed ground, kept for st●●ing and cherishing of Dear by the Lord of the liberty, or do take any Hawks out of the Lords woods or grounds, shall incur the same penalty. The Statute is general, extending to the Ponds, Parkes, or enclosed grounds, etc. of all persons, and giveth no power expressly to the Leet to inquire of it. But M. Kitchen doth direct the inquiry of it, Quatenus, it doth concern the Lord of the Leet. Greyhounds, etc. TO prevent unlawful hunting by artificers, labourers, servants, and grooms with Greyhounds and other Dogs, 〈…〉 It is ordained, That none such or any other layman, not having lands, to the value of forty shillings per annum, Nor any Priest or Clark, not having lands to the value of 10. pound a year, shall keep any Greyhound, or other dog to hunt. Nor shall use any Ferrets, heyes or other engines, to take or destroy any Deer, Hares, nor coneys nor other gentlemen's game, upon pain of one years' imprisonment. The first part hereof is mentioned by M. Fitzharbert in his charge of a Court Leet, fo. 86. And because there is no power given by this Statute to inquire here of, it is conceived, that it was here inquirable as a popular trespass or offence at the Common law before this Statute. Ideo quaere. These Laws last before cited, are for reformation of abuses in Hunting, Hawking, and Fishing, which M. Lynwood in his division of Mechanic arts, doth set forth in his fifth sort called Ars Venationis, for though the game be Regal and noble, and prohibited to mean persons, yet the instruments, provision and engines incident and belonging to Hunting, Hawking, and Fishing, must pass through the hands of Mechanic persons. Other Laws inquirable for the good of the Common Weal by express Statutes. Cottages and Inmates. NOne shall build or erect any manner of Cottage for habitation, 31 Eliz. 7. unless he assign unto it, four acres of ground at the least, to be accounted according to the ordinance De terris mensurandis, of his own freehold, and inheritance, lying near the said cottage to be continually occupied therewith, so long as the Cottage shall be inhabited, under pain of ten pound for every offence. None shall willingly uphold and continue such a Cottage, under pain for every month 40. shillings. None shall place or willingly suffer any Inmates, or more families or households than one, in any cottage made, or to be made, upon pain to forfeit to the Lord of the Leet for every month ten shillings. But Cottages in Cities, Boroughs, and market towns, or for convenient habitation for workmen within a mile of any mineral works, Colemynes, Quarries, etc. are not within this Statute. Musters FOr remedy of abuses in musters and the hindrances of due service in wars, It is enacted, 4 & 5 Phil. 〈◊〉 Ma. 3. That if any person shall refuse to come unto public musters, and absent himself without any lawful impediment or appearing, do not bring with him his best furniture or array and a mour, shall for every such offence, have 10. day's imprisonment, unless he pay a fine to the King of forty shillings, to be estreated in the Exchequer. If any Muster-Master or Commander, shall by any means exact or take any reward for sparing, or discharging any person from his service in the wars. Or if any Captain, or other having charge of men for service in the war, shall for any lucre or gain discharge or licence any soldier to departed out of service. Or shall not pay unto him his full and whole wages, Conduct, and coat money within 10. days after such Captain or leader shall have received the same, He shall forfeit ten times the value of the reward received, And pay to every Soldier treble the sum withholden. Horses not sufficient in length. THe generation and breed of good and strong Horses, 32 H. 8.13. do extend not only to a great h●lpe for defence of this kingdom, but is a great commodity to the inhabitants. And the efore it is provided, that no commoner in any Foriest, Chase, More, or Common whatsoever, shall have or put to pasture into such ground or Common any stoned Horse, above the age of two years, not being fifteen handfuls high, to be measured from the lowest part of the fore foot to the highest part of the withers, every handful four inches of the standard, upon pain to forfeit such horse or horses. And i● shall be lawful to any person to seize such horse, and to bring him to the next pound, and to measure him in the presence of three honest men, to be appointed by the Constable, Tethingman, or other Officer, And if he be not of that altitude, to challenge and retain the same to his own use, as his own proper goods for ever. The penalty of every Officer or other persons, appointed to measure any such horse, either refusing to do i●, or not truly measuring, is to pay for every time so refusing forty shillings. The one moiety to the King, the other to the pa●ty that will sue for the same by bill, etc. That the Forests, Chases, Commons and grounds shall be yearly driven at Michaelmas, or within 15. days after, by the Lords, owners, or officers thereof, and by the Constables, Bailies, Tethingmen etc. within whose limits, the Commons and grounds are, upon pain of forty shillings to be forfeited by every officer, at every time that the said drift shall be omitted, or not effectually done. And if in any of the drifts there shall be found any Mare, Filly, Fole, or Gelding, that then shall be thought not able nor like to grow able to bear fools of reasonable stature, nor to do profitable labours, by the discretion of the more number of the said drivers, than the same shall be killed and buried, or otherwise bestowed. Stewards of Leets to inquire of all defaults and to certify the presentments unto the next quarter Sessions, or to the Custos Rotul. of the County, within 40 days after such presentment made, to be heard and determined by them, or else The Steward to forfeit 40 shillings. Horses infect. NOne shall have or put to pasture, any Horse Gelding or Mare, infect with scab or mange into or upon any Commons or common fields, upon pain to forfeit to the Lord of the Leet for every such Horse, etc. so infect, ten shillings. This offence to be inquired and presented in the Leet as other common annoyances. Nota, this Statute in the most and fortilest shires of the Kingdom, doth limit 15 handfuls, and in the rest but 14. And by the 21. jac. ca 28. in fine. This Stafor the breed and stature of Horses, and killing of Fillies etc. shall not extend to Cornwall. The life and spirit of all law doth consist and depend upon the due execution of it. For which purpose there must be fit places and instruments of custody, and correction for offenders, and an upright care and integrity in officers, for performance of their duties. Pillory, etc. EVery one who hath view of Frankpledge, or the precincts and liberties of a Leet, aught to have a Pillory, and a Tumbril, whereby to do justice, and every Tything ought to have a Stocks, as well for the keeping and safe detaining of offenders, until they be brought before justices of peace or other Magistrates, as also for the castigation of malefactors and disordered persons, as Drunkards and others, or else five pound forfeited. The often cited ancient Law of 51. Hen. 3. doth enjoin an inquiry, if any Steward or Bay life for any reward, shall remit the judgement of the Pillory or Tumbril, and si habeant in villa pillorium debitae fortitudinis, etc. a Pillory of convenient strength, as appertaineth to the liberty of their marker, which they may use (if need be) without bodily peril, either of man or woman. Constables, Aleconners, etc. IF any Constable, Aleconner, Bay life or any other officers within the liberty, do not well and duly execute their offices, according to their several oaths and duties. Purveyor. IF any Purveyor shall make any purveyance for the King's house of any thing to the value of forty shallings or under, 20 H. 6. ca 8. and not make ready payment to the party, It shall be lawful to the owners to retain their goods, and to resist such Purveyors. That every Constable, T●thiugman, or chief pledge of every Town, being required, shall be assistant to such owner or seller, upon pain to yield unto the party grieved the value of the things and double damages 20. Her. 6. ca 8. Hue and Cry. TO abate the power of Felons, it was commanded that Cries shall be solemnly made in all Counties, Hundreds, markets, fairs and other places of great resort, and that immediately upon robberies and felonies committed, fresh suit be made, from Town to Town, and from Country to Country, according to the Statute of Winton. 13. Edw. 1. ca 1. In this service the Constables and Tethingmen have special interest, and their contempt or negligence here inquirable. Outcries made without cause. But if any Hue and Cry be levied, or any outcry made without any ground or cause, to the disturbance of the Country, and the peace of the people, inquirable. Watch and ward. ALso the Constables ought to see, that the peace be kept, and watch and ward observed from ascension day till Michaelmas, continually all night, from the Sun setting, till the Sun rising, according to the number of the inhabitants of the town 13 Ed. 1. c. 4. And that search be duly made every month for unlawful games. That the Statutes made against haunters of Alehouses and Drunkards, be duly put in execution. If the Constables have been remiss and delinquent in these or any other things, touching any part or branch of his oath and office, It is presentable. All Officers Defaults. ANd so all other Officers whatsoever, which own any suit and service to this ancient Court, as Tethingmen or chief pledges, Surveyors of highways, Searchers and Sealer's of Leather and such others, according to the Customs and jurisdictions of several Courts. The profit of the King or Lord of the Leet. CErtum Letae. In most Leets there is a duty or common fine, called in some place Certum Letae, payable to the Lord. The reason and Commencement of it is before declared. If that or any custom, or du●tie be withdrawn, it is presentable. Mortmain. TO preserve the services, due of the Fees and tenors of Lands, 7 Ed. 1. which at the beginning were provided for the defence of the Realm, and to prevent the loss of the escheats of the same, It is ordained, that no person, religious or other, shall presume to buy or sell any lands or Tenements, Or by colour of any gift, or term, or by reason of any other title whatsoever, or by any craft or engine appropre to himself any lands or Tenements, whereby it may in any wise come into Mortmain, If any do offend it shall be lawful to the King, and other chief Lords of the fee, immediate, to enter into the Land so aliened, within a year, from the time of such alienation, and to hold it in fee and as inheritance, and if the chief Lord immediate be negligent, than the next chief Lord may enter within half a year after, etc. Treasure Trove. IF there be any Treasur-trove, viz. treasure put into the earth, and no man knows who hath hidden it, it belongs either to the King or the Lord, according to the ancient rule of the Law. Thesaurus inventus competit Domino Regi, et non Domino libertatis, nisi per verba specialia in facto libertatis contenta, vel per praescriptionem, antiquitus fuit inventoris, de jure naturali, nunc de jure gentium efficitur Domini Regis. Estreyes. ALL Estreyes are here inquirable, that is, If there be any Horses, Pigs, Hogs, Cattles or Swans, which have come within the Lordship, and been there a year and a day, and not claimed, the Lord may have them by prescription. But such beast ought first to be impounded, in an open pound, proclaimed in three Market towns next adjoining, and then if none claim them, they shall be seized, and aught to be put into some several land, and not into any covert or wood, where the owner cannot find them. For if they be in covert, the property is not altered, though they be there a year and a day. waifs. CAtalla Waviata, when a thief upon hue and cry, and pursuit after him, or else for ease of himself without hue and cry, doth wave or derelinquish (therefore called by the Civilians, bonaderelicta) the goods feloniously stoine by him, or any part thereof, and slayeth away, the King or the Lord is to have it, unless the owner of them do make fresh suit after the Felon to attaint him for tho● goods, which if he doth, he shall have his goods again, notwithstanding the wayving and seizing. ●ot note if Goods be stoine and wayved, yet the owner may rescise them 20 years after, if they were not formerly seized by an officer of the King or the Lord of the liberty. Fugam fecit. IF any upon Indictment of murder before the Coroner be found quod sugam fecit, or if any be indicted of Felonic and acquitted, and found that he fled, he forfeits his goods to the King, and the Lord may claim them by Charter, but not by prescription. The old law, Si quis post fugam redierit & inno centiam suam purgaverit, nihilominus facultates suae ap●d fiscum remanebunt. Exigent. IF Exigent be awarded against one Indicted in Felony, he forfeiteth his goods, though he be after acquitted of the Felony, the King shall have his goods, and the Lord by Charter, but not prescription. Outlaws. ALL persons outlawed in trespass, debt, or other personal actions, do forfeit their goods to the King, and the Lord may have them by Charter. Cleri Convicti. ALL Clerks convict, men that have the benefit of their Clergy, and do undergo the burning in the hand (called by the common law Cauterization) do forfeit their goods notwithstanding. By-Lawes. ANy By-lawes for the common weal may be made in a Leer, and are good and will lie against those that do not consent, as to make Cawseyes, Highways, Bridges, and such like, 44 Ed. 3. so. 19 But a By-law to repair a Church, binds none but such as do assent, vid. Co. 5. f. 63. A Leer may make by-lawes, the Lord by prescription may distrain for the Amerciaments, and sell the distress: For the King may so do, and the Leet is the Kings, although the Lord hath the profits. Brook Leet 34. Prescription 40. The Statute for view of Franck-pledge made the eighteen year of King Edward the Second. FIrst, you shall say unto us by the oath that you have made, if all the jurors that own suit to this Court be come, and which not. And if all the chief pledges or their dosens be come, as they ought to come, and which not. And if all the dosens be in the assize of our Lord the King, and which not, and who received them. And if there be any of the King's villains fugitive dwelling otherwhere than in the King's demeanes, and of such as be within the King's demeans, and have not. .hiden a year and a day. And if there be any of the Lords villains in Frankpledge, otherwhere than in this Court. Of customs and services due to this Court withdrawn, how and by whom, and in what Bailiffs time. Of Purprestures made in Lands and Waters to annoyance. Of Walls, Houses, Dikes, and Hedges, set up, or beaten down to annoyance. Of Bounds withdrawn and taken away. Of Ways, and Paths opened or stopped. Of Waters turned or stopped, or brought from their right course. Of breakers of Houses, and of their receivers. Of Petty Larens, as of Geese, Hens, or Sheaves. Of I heeves that steal cleathes, or of Thiefs that do pilfer through windows and walls. Of such as go on message for thiefs. Of Cries levied, and not pursued. Of Bloodshed, and if frays made. Of escapes of Thiefs or Felons. Of persons outlawed returned, not having the Kings warrant. Of Women ravished not presented before the Coroners. Of clippers and forgers of Atoney. Of Treasure found. Of the Assize of Bread and Ale●roken. Of false measures, and of Bushels, Gallons, Yards and Ells. Of false Balances and Weights. Of such as have double measure, and buy by the great, and sell by the less. Of such as continually haunt Taverns, and no man knoweth whereon they do live. Of such as sleep by day and watch by night, and far well, and have nothing. Of Cloth-sellers and Curriers of Leather, dwelling out of Merchant towns. Of such as take Church or Churchyard, and after departed without doing that which belongeth there●nt●. Of persons imprisoned, and after let go without maineprise. Of such as take Doves in Winter by doorefals, or engines. And of all these things you shall do us to wit, by the oath that you have taken. A note of the Statutes which are repealed, altered, or expired, since the time wherein M. Kitchen wrote, which I thought fit to set down, in regard many of them (I have observed) are frequently given in charge till this time. The Statute of Cordweyners, 5 Eliz. ca 8. Repealed 1 jacob. 22. The Statute of Crownets for the destruction of Crows, Rooks, and Choughes, 24 Hen. 8.10. Expired 8 Eliz. 15. The Statute of Hats and Caps, 13 Eliz. ca 19 Expired 39 Eliz. 18. The Statute against Riots, 1 Ma. ca 12. continued 1 Eliz. 16. during the Queen's life, until the end of the next Parl ament following. Expired, yet Riots are in juirable as an offence at the Common Law. The Statute of Wynes, 7 Ed. 6. ca 5. Repealed in part 1 jac. 25. as is before declared. The Statute touching Horsbread, 31 H. 8.41. Repealed by 22 jac. Reg. 21. The Statute of Apparel made 24. H 8. ca 13. Repealed 1 jac. 25. The Oath of a Constable set forth by M. Kitchen with the additions mentioned in the Statute of 21 Ja. which oath contains a short Epitome of the d●tie and office of Constables YOu shall swear, that you sh●ll well and truly serve our Sovereign Lord the King, in the office of Constable for this year now to come, you shall see that his Majesty's peace be well and truly kept according to your power, and you shall arrest all those whom you shall find committing riots, debates, or affrays, to the breach of the peace, you shall endeavour yourself according to your knowledge that the Statute of Winton. For watch, hue and cry, and the Statutes made for the punishment of sturdy Beggars, Vagabonds, Rog●●s, and other idle persons coming within your liberty, be duly put in execution, and that the offenders be duly punished, you shall also (upon complaint made unto you) apprehend all Barrertois, and Riotous persons, and all Felons, and if any of them do make resistance with force and multitude of Malefactors, you shall make outcry and parsue them until they be taken. And you shall look and search after such persons as use unlawful games, and you shall have regard unto the maintenance of Artillery. And you shall well and truly execute all such process and precepts as shall be directed unto you from his Majesty's justices of peace of the County or any his Highness' judges, justices or Officers whatsoever, and you shall well and truly present all bloodsheds, outcries, affrays and rescues happening or committed within your liberty; you shall also present all offenders and offerces against the Statute made in the fourth year of our late Sovereign Lord King james, entitled, an Act to repress the odious and loathsome sin of drunkenness; and also against the Statute in the first Session of Parliament in the first year of his late Majesty's reign, entitled, an Act to restrain the inordinate haunting and tippling in Inns and Alehouses, and other victualling houses with the alterations and additions contained in the said Act of the fourth year, according to the alterations and additions of the Statute, made in the 21. year of his said late Majesty's reign, entitled, an Act for the better repressing of drunkenness, and restraining the inordinate haunting of Inns and Alehouses, and other victualling houses; And lastly, you shall well and truly do and execute all those and such other things as are incident and do belong unto your office of Constable for this year now to come. So help you God. FINIS. AN EXPLANATION OF The old Oath OF LEGIANCE: CONSISTING Of these four general Heads. 1 What Legiance, Ligeantia or Fides, is 2 The extent of it by this ancient Oath, and the several parts and branches of the Oath. 3 The Modus Reddendi of aids and supplies to the KING. 4 The Royal Office of the KING in the protection of his people, confirmed at his Coronation. Together with their several Subdivisions at large. LONDON, Printed by Richard Badger 1641. AN EXPLANATION OF THE ANCIENT OATH OF LEGIANCE. AN Oath is an attestation or calling God to witness of the truth, touching those things which we say, affirm, and promise to do, upon the holy Evangelists, and before a lawful Magistrate, authorized to take such an Oath: and that is a legal Oath. There are two sorts of Legal Oaths used and practised within this Realm (viz.) juramentum consuctudinarium, warranted by the custom of the Realm, which is no more than the Common Law. 2 juramentum Parliamentarium, an Oath created and enacted by all the three States, as the Oath of Supremacy prescribed 1 Eliz. cap. 1. and the Oath of Allegiance, 3 jacob. 4. And no Oath can be imposed upon the Subject but what is enabled by the usage of the Common Law, or by an Act of Parliament. This ancient Oath was in time very long before the great Charter, as in the former tract is remonstrated. And bathe been confirmed from time to time, in and by Magna Charta: So that it hath 〈◊〉 power and vigour, both from the common and commit●●● laws of this Kingdom; The Oath (though once before mentioned) doth follow, viz. Hear ye, that I. N. do swear that from this day forward, I will be true and faithful to our Sovereign Lord the King and his heirs, and truth and faith bear of life and member, and terrene honour. And I will neither know, nor hear of any ill or damage intended unto him, that I will not defend. So help me God. This Oath contains a real protestation of every Subject's duty to his Sovereign, and expressly declares what Subjection and Obedience ought to be expected from them, and implicitly the office of the King towards his people, which is protection, for it is truly said, That protectio trahit subjectionem, & subjectio protectionem. It is clear that the general obligation of subjection and duties from the people, and the power and prerogatives royal in the Prince are included in the law of God, and are part of the Law of Nature, whereto all Nations have consented, which if I should Illustrate (as well I might) by innumerable testimonies, precedents and examples, aswell out of sacred Scriptures and Fathers, as out of Heathen Writers, Historians and others, it would fill up a larger volume, than this Subject would require. I am only to deal with that subjective faith and Legiance, which by the provincial Laws of this land, which are (Generalis consuetudo Regni Anglicae.) is naturally, and legally jure haereditario, due to the person and royalty of his sacred Majesty. This Legiance is derived to him from Lex aeterna, the Moral Law, called also the Law of nature, part whereof the Law of England is, being first written in Tabulis rectae rationis, in the heart of man; and the people by that Law governed two thousand years, before it was published and written by Moses, and before any judicial or municipal laws. For the better informing of the vulgar sort of people herein (for whom it is most convenient) I shall assay to present to the well affected reader some collections to that end whereof I shall (as the matter will bear) endeavour an orderly prosecution. 1 First, a general proposition what Legiance, ligeantia or fides, is. 2 Secondly, the extent of it, by this ancient Oath, and the several parts and branches of this Oath. 3 The Modus reddendi of aides and supplies. 4 The Royal office of the King, ad protectionem, for the protection of his people, sacramentally confirmed at his Coronation. 1 Legiance is a true and faithful obedience of the Subject due to the Sovereign, this Legiance and obedience is a due inseparable from the Subject, and is called ligeantia naturalis, for as soon as he is borne, he oweth by birthright Legiance and obedience to his Sovereign, Ligeantia est vinculum fidei, the bond or obligation of faith and loyalty. Master Skency, De verborum significatione, verbo ligeantia, saith, That it is derived from the Italian word (liga) viz. a bond, league, or obligation. As a great Lord Chancellor in the case of postnatis said, That ligeantia understood sensu currenti in the language of the time, is vincusum fidei & obedientiae, the tye or bond of faith and obedience. And he that is borne in any of the King's dominions and under the King's obedience is the King's liege Subject, and borne ad fidem Regis, That is (being the proper word used in the Law of England) to be faithful to the King. It extendeth further in all cases of denization, which is called ligeantia acquisita, where any alien or stranger borne out of the King's Dominions doth afterwards by any common grant of the King, any Act of Parliament, or other ways or means, obtain the freedom of a Subject within this Land. Sometimes the extension of this word is yet larger for he that is an alien born out of the King's Dominions, ad fidem, or under the obedience of another King, if he dwell within the Kingdom, and be protected by the King and his laws, he is under the King's Legiance, ligatus Regi● and the reason is plain, For if to such a person any injury is done, either in life, member, or estate, the Law taketh as severe an account, and inflicteth as severe a punishment upon the offenders in such cases, as if the party injured had been subditus natus, borne within his Majesty's dominions. Then great reason, that such persons having the benefit of natural borne subjects (which is protection from suffering any detriment or harm) should be as free from acting and doing any wrong, for as they have idem beneficium, they must have idem supplicium, as the same protection in good actions, so the same correction in bad. It was Shirley the Frenchman's case, who being in amity, and under the protection of King Philip and Queen Mary, joined and conspired with d●●ers subjects of this Realm in treason against the King and Queen, and the Indictment concluded, contra ligeantiae suae debitum; The case of Perkin Warbeck, 15. H. 7. and of the Portugal adherents to Doctor Lopes in the 36. year of Queen Elizabeth, might here be remembered to this purpose. We have seen what Legiance is, 2. Branch. let us consider the extent of it, in its explication by this ancient Oath, which I may well term vinculum vinculi, or ligamentum ligaminis. That Legeanee, Faith or Fealty, which is annexed by birthright, is by this Oath solemnly explained, attested and confirmed, and is called legalis ligeantia, established by the wisdom of ancient times, and had its beginning with the national laws of this Island in the time of the Britons. It is true that this oath doth not create the Legiance of a subject, but doth demonstrate the fruits of faith and obedience, which must ever be concomitant with subjection: For as it was gravely observed in the book of Postnati, foe. 64. Subjectio, fides et obedientia, must be in a true and lawful subject, of what Nation soever, and cannot be severed, no more than true faith and charity in a true Christian. And he that hath these three from his nativity is ligeus Regis, the King's Liege man. Hence I infer, that ligeantia is visibilis and invisibilis, visible as to subjection and obedience, and invisible as to fidelity and loyalty, this must be rooted in the heart, the other expressed in the action. A man may be a s●●●ect borne and actuate an external obedience, yet Cordi nulla sides, he may be disloyal in the heart, Therefore the sacred Scripture inhibits the very thoughts of a man against Kings and Princes the Anointed of God, Nolite tangere unctos meos, he doth not say ne tangite, but nolite, have not so much as a will to touch mine anointed, In cogitation tua Regi●e detrahas, deprave not the King even in thy thoughts. Many more precepts might I here instance. To prevent the mischivous events of disloyal imaginations, and to confirm the Legiance of the heart, and to discover agnes & haedis, the good from the bad subject, the prudent policy of pristine ages, invented forms of oaths in most Kingdoms, as may be problably conceived. In this Island of great Britain, this oath of Legiance was first invented by King Arthur, At which time the Leet was called Folkemote (viz.) a meeting of the people, and this appellation is retained in London to this day. Amongst the Laws of King Edward the second, before the Conquest, it is thus expressed, Omnes Principes & Comites, Proceres, Milites & liberi homines debent jurare, etc. in Folkemote, & & fimiliter ownes Proceres Regni, Milites, & liberi homines universi totius Regni Britanniae facere debent in pleno Folkemote fidelitatem Domino Regi, etc. Hanc legem invenit Arthurus, qui quondam fuit inclitissimus Rex Britonum. etc. Hujus legis authoritate expulit Arthurus Rex Sacacenos & inimicos à Regno, etc. And by that means he did settle and counite his whole Kingdom together, Ita consolidavit & confideravit Regnum Britaniae universum super in unum. It is therefore said. that Lex ista diu sopita fuit & sepulta, donec Edgarus Rex Anglorum illam excitavit & erexit in lucem, & illam per totum Regnum firmiter observari pracepit. This law was laid in a slumber and forgotten until King Edgar (who is styled Rex pacificus) did revive and bring it to light, and commanded a strict observation thereof throughout his Kingdom: For during the Heptarchy, and until King Alfred had made the way for settling of a Monarchical government it could not well take place, this oath afterwards gre● so useful and advantageous for the absolute government of this Island, as that all the Danes who were dispersed in their abode amongst the English, and refused to submit to this oath, were all upon the Feast of S. Brice put to the sword, by the politic directions of King Ethelred and his Council. Hujus legit authoritate E●helredu● Rox sub●to uno codem●, di● per universum Regnum Danos occidit. For the same end and purpose, as is herein before remembered, was that oath of Allegiance justly conceived in the high court of Parliament, holden An. tertio jacobi, upon the occasion of that horrid and dreadful Gunpowder treason, as our late learned Sovereign, in his monitory preface to all Christian Princes, prefixed to his Apology for this oath, doth averte. Horrenda illa & prodigiosa conjuratio quae per tormentarii pulveris impetum destinabatur, de cujus immanitate nulla unquam aetas conticescat. That most horrid and prodigious Gunpowder conspiracy, whereof no age will ever be silent. And further saith his Majesty in that Apology, Nec in alium finem constitutum est juramentum, quam ut inter fideles subditos & perfidos proditores discrimen aliquod extaret. That this oath of Allegiance was constituted to no other end, but to put a difference between faithful subjects and perfidious traitors. This later is enlarged in the occasional particulars, but the general scope thereof is tacitly and implicitly comprised, in that other ancient and well digested oath, this main difference stands between them, the former oath is confined as topeople, time, and place; the later hath its extension to all persons, without any exception. There is the like oath used in the civil or Imperial law, called juramentum ligeis, one of the old, another of a new invention, cited Lib 3. Summae Hostiensis, foe. 773. and thus gins. Ego T. juro super sancta Dei Evangelia, quod ab hac hora ero fidelis contra omnem hominem, etc. The Civilians distinguish two sorts of oaths, judicial, and extrajudicial. And their oath of juramentum ligei vel fidelitatis, they rank in the number of extrajudicial oaths. But our ancient oath of Legiance, is, and well may be accounted in the judicial number, and my reason is, whatsoever oath is administered in a Court of Record, as the Leet, and before a judge of Record, as the Steward is, and according to the prescript form of our common Law, is judicial; whatsoever oath is administered praeter legem, and not according to the precise rule of Law, is extrajudicial. This oath is not so administered, but juxta legem & normam legis, and therefore is not extrajudicial. But why do I endeavour to light a candle at noon, or to explain that which is plain enough in itself? 1 First for the time, it is indefinite, and without limit from this day forward. 2 The terminus a quo, you, every subject whom the Law enjoins, to take this oath. 3 The qualities or properties required, that is, to be true and faithful. 4 Terminus ad quem, to whom? To our Sovereign Lord the King, and his heirs. 5 In what manner? And faith and truth shall bear of life and member. That is (as in calvin's case) until the letting out of the last drop of our dearest heart blood. And I must add what is there omitted, And terrene honour, That is the uttermost of our estate and livelihood. 6 The circumstance of place where these duties of Legiance concerning our lives and estate ought to be performed, it must be in all places whatsoever, without any circumscription, for you shall neither know nor hear of any ill or damage, etc. that, you shall not defend. The parts of this oath for the better instruction of the common people, I shall sum up in this one proposition, which I will presume briefly and succinctly to handle. Every subject must be true and faithful to the King and his heirs, to the uttermost of his life, and fortune, or estate. 1 The King hath a double capacity in him, one a natural body, being descended of the blood Royal of the Realm, which is subject to death, infirmity, and such like. 2 The other is a politic body or capacity, so called, because it is established by the policy of man; and in this capacity the King is esteemed to be immortal, invisible, not subject to death, infirmity, infancy, nonage, etc. This Legiance is due to the natural person of the King (which is ever accompanied with the politic capacity, that is, the Crown and Kingdom) And is not due to the politic capacity only, distinct from his natural, (as by divers reasons in calvin's case is at large recited and resolved) For if that distinction might take place, than would the faith, legiance, and obedience, of every subject due to his Sovereign, be appropriated, regimini, non regenti, to the government of a Kingdom, not to him that ruleth or governeth. In the time of Edward the second, at a Parliament holden at York, Hugh la Spencer, the son being nominated and appointed, to serve the King in the office of Chamberlein, did draw unto his adherence Hugh Spencer his father, and they both usurping upon the King's Royal power, and compassing about, to have the sole government of the land to themselves, did traitorously contrive a declaratory writing, which they would have compelled the King to sign, purporting (amongst other mischievous positions) That homage and oath of Legiance, was more by reason of the King's crown, (that is his politic capacity) than by reason of the person of the King; whence they inferred these damnable and detestable consequents. 1 If the King did not demsne himself by reason in the right of his Crown, his lieges were bound by oath to remove him. 2 That since the King could not be reform by suit of Law, that aught to be done per aspertee, by asperity of Compulsion. 3 That his lieges be bound to govern in aid of him, and in default of him. All which execrable opinions were condemned by two Acts of Parliament, one in the 14. year of the reign of the same king Edward the second; called Exilinm Hugonis le Despensor patris & fili●, the other An. 1. Ed. 3. cap. 1. which confirmed the banishment of these Spensers. Legiance then by law of nature (before any judicial or municipal laws were recorded or reported) is due to the sacred person of the king alone, immediately, and without any intervallum or moment of time, and before the solemnity of his Coronation, and so must remain to him and his heirs, and entirely without any partnership with him, or any intermission in default of him. & emnimode, by all ways and means. It is due to his natural person, accompanied with his politic capacitis, indistinctly without any partition or separation, and this oath is a political confirmation of that Legiance. It is due to him as he is mixta persona, anointed by the hand of the priest, as he is supreme head under Christ, in all causes and ove● all persons, aswell Ecclesiastical as Civil. The qualities prescribed by this oath are naturally incident to Legiance, verity, and fidelity, to be true and faithful, and they comprehend what before is spoken of, faith, obedience, and subjection, faith unto his person, obedience to his laws, Subjection to his government, or all, to all, faith, subjection, and obedience to his person, laws, and government: By the ancient laws of this Realm, this kingdom of England is an absolute Empire and Monarchy, consisting of one head which is the king, and of a body politic (which is the common wealth) compact and compounded of many and almost infinite several members, all which the law divideth into several parts, the Clergy, and the Laiety, this Legiance requires a due observancy of all the Moral laws, contained in both Tables of the Decalogue. To obey our king in the true and sincere worship of God, according to the canonical discipline of the Church, ratified by his regal authority. To obey him in abandoning all apostasy from Christianity, heresies, schisms, factions, fond and fantastic opinions, repugnant to the Orthodox doctrine of the Church. To obey him, in acknowledging a supremacy in him, and a subordinate superiority in his Ministers and Magistrates over his people. To obey him in all the rights of distributive and commutative justice, in doing good, as works of mercy, charity, and piety, and eschewing evil, that is all sorts of felonies, fraud, force, deceit, and all offences whatsoever, which derogate from, or deprave the peace and government of the Realm. The performance of these duties makes a true and faithful subject. The latitude and extent of this verity and fidelity from the subject to the Sovereign, is twofold, The extent this oath. first of life and member; secondly, of terrene honour, wherein the prerogative of the king is considerable generally according to the special law of nature, called by some jus Gentium, and styled by our common law, lex rationis, the law of reason, and more specially according to the municipal laws and customs of this kingdom. The King is pater patria., and every subject is bound by the law of nature to hazard, and adventure, both life and member, for the safety of the King and Country, either against privy and traitorous conspiracies, civil mutinies, and dissensions, or hostile Invasions, or injust wars, or in the execution of legal acts of justice. The Poet could say, Dulci est pro patria mori, a sweet thing it is to die for our Country, and as sweet a thing it is to die pro patre patria, for the father of our Country, for indeed both come to one. There may be many causes of war, which when they are discussed, and resolved by the King and State, the justness of them is not to be disputed by every private person. The end of all war should be peace, bellum geritur ut pax acquir atur. 1 It is just cause of war, when public negotiation and commerce is interrupted or disturbed, and for recovery of things wrongfully, and by force taken fiom us by foreign enemies. 2 Or if any shall go about to usurp upon the King's right of dominion, in any of his kingdoms, It is just cause of war. After that David by God's direction went up to Hebron, and was anointed king over the house of judah, upon the death of Saul, he maintained a long war against Ishbosheth the son of Saul, for usurping the kingdom of Israel, 2 Sam. 2. The revenge of an injury or disgrace despitefully done either to a Prince or to his Ambassadors is likewise a good cause of war, when Naash the king of the children of Ammon died, and Hanun his son succeeded in his stead, David sent messengers to comfort him, upon the death of his father, their entertainment was not suitable to their errand, Hanun by the advice of his Princes took David's servants and shaved them, and cut off their garments in the midst, a natibus us●● ad pedes, and so sent them away. For this great disgrace and abuse (the text faith grandem contumeliam sustinuerunt) David did justly wage battle against the king of the Ammonites, Chro. 1.19. He did the like against Sheba the son of Bochri a man of Belial, for blowing a Trumpet, and soliciting the men of Israel to revolt from David, to him. Samuel 2. chapter 20. ●●●y other particulars might be here instanced. Next how fare the preeminence of a king (as to life and member) is to be considered, Life and member considerable by the common and statute laws. specially by the common and Stature laws of this kingdom; by the common and positive laws of England, The subjects are bound by their legiance to go with the king, and by the Commandment of the king, in his wars aswell within the Realm as without, and this doth copiously appear by several statutes, which seem to be but declarative of the common law, as 1 Ed. 3. cap. 7. which mentions the conveyance of soldiers into Scotland, Gasconie, or elsewhere, 18. Hen. 6. cap. 19 which maketh it felony, If any Soldier retained to serve the King in his wars, doth not go with, or do departed from his Captain without licence, the preamble of the Statute tells us, that the Soldier, so doing, did as much as in them was, decay the honour and reverence of the king; And by the Statute of 7. Hen. 7. cap. 1. Forasmuch as the offence of departing or not going, did stretch to the hurt, and jeopardy of the king, the nobles of the Realm and all the Common weal thereof, therefore he or they so offending should not enjoy the benefit of Clergy. By the Statute 11. Hen. 7. cap. 1. It is expressed, that the subjects of this Realm, are by reason of their allegiance bound to serve the Prince, from the time being in his wars for the defence of him and the land, against every rebellion, power, and might, reared against him, either within the land or without, and this statute together with some others were adjudged, Trin. 43. Eliza. to be perpetual acts and not transitory for the king's time only wherein they were made. As peace is the true end of war, so peace, must be preserved, that war may be avoided; In the times of peace, there must be preparations for war, by causing musters, and martial meetings, to be assembled at times convenient. And therein the Lieutenants their Deputies of each several County, with Muster-masters, and other subaltern officers have a special interest of employment, and therefore provision was made, 4. & 5. P. & M. for the better ordering of Musters, Captains, and soldiers. In the time of peace, the common and municipal law of this kingdom provides for suppressing of all rebellions, insurrections, and rietous assemblies, To which end the king commits the custody of each county to an officer very ancient, with us called a Sheriff, who for the service of the king, and peace of the country, hath power to raise the power of his county. And every subject is bound to attend him, as the king's deputy, in causes of public service, warranted by the laws: and this officer is to dwell in his proper person within his Baylywicke, that he may the more readily attend the king's service. The second point is, terrene honour, Terrene honour what it is and herein I must walk warily, passibus aquis. First must be determined what is meant by terrene honour. Some would have it to be the outward worship and ceremonial honour, that we can do in this world to the king, next to the service of God. If that were only intended by these words, it were but a shadow in regard of substance, for in devoting our life and blood, is comprehended the highest pitch and strain of honour that might be; Our Saviour Christ his words, Matth. 6.25, Is not life more worth than meat? and the body than raiment? will fully satisfy us, that the life of man is above all worldly riches, and honours; and therefore something else must be conceived out of these words, more than a shadow, or ceremony. By the first commandment of the second table, in the subdivision of the persons to whom honour is due, there is in the opinion of many Divines, a kind of particular honour or esteem to be ascribed to a man who is more wealthy than his neighbour, in regard of the talon of terrene riches wherewith God hath endowed him, and thereby enabled him to supply the King and the common weal, by rendering his respective deuce and duties unto them, in a larger proportion than other persons who are inferior in their worldly means, Dat census honores. Then since all riches, wealth and substance, are called terrene, quiae terris & terrenis accrescant, because they proceed and have their being out of earth and earthly things; and are the causes of particular honour, and esteem, and of distinguishing the degrees of men, as husbandmen, Yeomen, Gentlemen, Esquires, and the like, and also of cradesmen, both of Merchandise, and manufacture, according to the customs of this Kingdom. It will follow by good consequence, that, as the King is to be honoured and obeyed with life and member, so with earthly substance, according to the dimension thereof, and the degree of each man's earthly honour; Saint Paul in the general clears this point of prerogative, jure divino, Romans 13. Omnis anima potestatibus sublimieribus subdita sit, etc. Let every soul be subject to the higher power, For there is no power but of God, verse 2. whosoever therefore resisteth the power, resisteth the ordinance of God, And the Apostle pursues it with Ideo necessitate subditi estote, etc. verse 5. Wherefore ye must needs be subject, not only for wrath, but also for conscience sake, Verse 6. For this cause pay you tribute also, For they are Gods Ministers attending continually upon this verything: Verse seven. Reddite ergo, Render therefore to all their deuce, tribute to whom tribute is due, custom to whom custom, fear to whom fear, honour to whom honour: By this text, me thinks the very words terrene honour, is sufficiently explained in the general word debita, deuce, specified in the particular words tribute, custom, etc. One thing more is worthy consideration, upon that of Romans 13. the generality of the Apostolical edict, Omnis anima subdita sit, etc. No person either of Clergy or Laiety is here excepted. Though Bellarmine and other Romish Champions, would have bona clerici tam Ecclesiastica quam sacuularia, the goods of an Ecclesiastical man, as well spiritual astemporall, to be free from tribute unto secular princes, yet by their favour, both by the law of God and the law of nations (and then by our common law no man doubts it) all Ecclesiastical persons (as they make a part of the common wealth) are subject to their prince, aswell in their secular goods, whether they be patrimonialias, seu mobilia, without any manner of exemption, nay such goods as we call Ecclesiastical, being within the dominion of the prince (who hath a general charge of conserving all subjects goods) ought to be charged with necessary deuce and duties to the king. For if they be (as they are) upon judgements liable for the payment of debts to particular persons, than a fortiori to the king for tributes, taxes and subsidies. And great reason, for they have the same protection, with some more privilege, and therefore aught to acknowledge the same subjection due to him. To add something more to terrene honour, and the explanation thereof, it must signisie so much as the first word of the fift Commandment implies, Honour a patrem, etc. It is received amongst all Divines, that under the names of patris & matris, are meant not only our natural but our civil parents, as Kings and Princes and others constituted in authority under them; and by the word Honour, is not intended a bare outward respect, but reverence attended with fear, honour bene faciendi, timor male agendi. This word honour doth first include all those duties, which we own, not only to our natural parents, but to our prince, who is Pater civilis, and the duties are respectively these, viz. love, observance, worship, obedience, aid, and supply, in relieving their necessities, and all this must be done, cord, over, & opere, in thought, word, and deed. The second duty, to pay their deuce unto their princes, willingly and freely without discontentment, tribute to whom tribute. etc. and what ever payment else is necessary, for the maintenance of their estate, partly that they may be able to repress enemies, and rebels, and partly, that having sufficient maintenance from the people, they may not be distracted, but bend their whole endeavour to the good government and protection of their Subjects. S. Ambrose commenting upon that 13. to the Romans, citing the words of our Saviour Christ in S. Matthew ca 22. Reddite que sunt Caesarts, Caesari. Give unto Caesar that which is Caesar's, doth inter, Huic ergo (viz. Principi) subjtetends sunt, sicut Deo, cujus subjectionis probatio hac est, cum illi pendunt tributa vel (faith he a little before) quae dicuntur siscalia, Therefore the people must be subuject unto their prince, as unto God: The proof, (or badge, or cognizance) of our subjection is, that we pay tribute, or such things or duties, as are for the supply of the king's treasury, customs, tributes, subsidies, and all other deuce and duties, are therefore rendered unto the prince, as a token and argument of subjection, whereby his subjects testify that they are truly thankful for the protection which they receive from the powers which are from God. A modern writer upon the Pandects of the Law of Nations, Fulbeck. cap. 10. maintains, (and well he may) that in the law of tributes, subsidies, and prerogatives Royal, all nations have consented; And as (saith he) it behoveth every Monarch to have a watchful care of his subjects good, and bend the force of his mind to the preservation and maintenance of their safety, and good estate: So subjects should not grudge to pay unto them tributes, and subsidies, and other public impositions, that all necessary charges may be substantially defrayed, all convenient designs produced into act, and condignly executed. By an Act of parliament, 1 Elizab. cap. 3. touching the recognising of Queen Elizabeth to the Crown, Stat, 1, Eliz. It is there declared by all her subjects, representing the three estates of this Realm, that they, as thereunto constrained by the law of God and man, did recognize her Majesty's right, title, and succession to the Crown, and did hereby promise, that they would assist and defend her Majesty, and her rights, and titles, in, and to her imperial estate, crown, and dignity, in all things thereto belonging, and at all times to the uttermost of their powers, and therein to spend their bodies, lands, and goods, against all persons whatsoever, that in any thing should attempt the contrary. By the like Act Anno primo jacobi, purporting a recognition, Stat. 1. jac. that the Crown of England was lawfully descended to king james his progeny and posterity, his Highness' subjects did thereby acknowledge his Majesty's lawful descent to the imperial Crown of all his Realm, ●and his goodness, and ableness, to protect and govern them in all peace and plenty, and thereunto did humbly and faithfully submit, and oblige themselves their heirs, and posterities for ever, until the last drop of their blood were spent. In Magna Charta, ca 14. no man is to be amercied, but according to the quantity, and quality, of the offence. A freeman saving to him his contenement (that is his free hold-lands) A merchant likewise, saving to him his merchandise, and a villain or bondman, saving to him his waynage (or gainure) as it is 3. Ed. 1. cap. 6. that is his land which he held in villainage; and the reason of this salvo, was (as is justly conceived) that these things might be respectively enjoyed by the owners of them, and thereby they might have where withal to sustain themselves and their families, and to pay their duties to their princes. It is most infallibly true, and no man can justly impugn it, That the King hath power aswell of terrene honour, that is a man's estate, as of his life. 1 By the law of God, as a sign or Character of our subjection. 2 By the law of nature, as a testimony of regardful thankfulness, for his vigilant and assiduous care, pains, and protection. 3 By our own provincial laws, as the sinews of the states preservation. Thesaurus regis, securitas plebis, The King's treasury, is the people's security. Money is the strength of a State. But the mode reddendi, the manner of rendering to our prince his deuce, 2 Branch, De ●odo●reddendi. according to the true meaning of this ancient oath of Legiance, is the difficult question, S. Pet. 1.6, 2. v. 13. giveth this monition, Submit yourselves to every ordinance of man for the Lords sake, whether is be to the King as supreme, verse. 14. or unto governor's as unto them that are sent by him, etc. Though by the rule of S. Paul the substance of every prince's power, is the ordinance of God, yet the specification of the circumstances thereto belonging, as in regard of places, persons, Jurisdiction, subordination, and the rest, is an humane ordinance, introduced by custom, or positive law. Hence I will deduce this general position. That all subjects are bound by duty and legiance to their princes, to render to them civil obedience, and their deuce, and duties, according to the laws and customs, of that kingdom wherein they live, then by consequence, the subjects of great Britain to their gracious Sovereign, according to the Laws and customs of our Nation. To capitulate here all the casual deuce, and duties, annexed to his prerogative, as forfeitures, escheates, confiscations, or such like, or wardships, marriages, primer seisin, and many more at large recited, and declared by the statute, entitled, Prarogativa Regis, published in the 17 year of Ed. 2. Or to make particular rehearsal of other ordinary deuce, as customs, aid and such like, were clearly out of the scope of my intention. But faithfully to deliver by what ways and means the king may require any extraordinary aid, and supply out of each subjects particular estate, or terrene honour, hic labour, hoc opus est. Some not well affected to the constant government of this kingdom, The payments of deuce and duties most proper by Parliamentary gift. would have the king's necessities, supplied by impositions, and taxes to be raised and levied by the king's mere and absolute power, without any commitiall consent of peers, and commons; others more orthodox (if I may so term it) to the happiness of his Majesty, and tranquillity of the State, do hold, (and so it hath been declared by ancient & modern parliaments) that a parliamentary gift, subsidy or supply, be it of what name soever, from the subject to the King, is most proper and compatible, with the ancient rule and government of our kingdom. The very name of parliament is sacrum quoddam, and the nature of it most sublime, and so long as the members are in unity with the head, most absolute and illimited. The kingdom of England is a most ancient Monarchy, under the rule and government of a Supreme Liege Sovereign, conform, and according to the peculiar laws, and customs of the nation, confirmed by several Parliaments: and whereas all other nations, as Bracton faith, Lib. 1. Cap. 1. were governed by written laws, Sola Anglia usa est in suis finibus jure non scripto & consuetudine, in en quidem ex non seripto, jus venit, quod usus comprobavit. Sed absurdum non erit leges Anglicanas (licet non scriptas) leges appellare, cum legis vigorem habeat quicquid de consilio, & consensu magnatum & reipublicae communi sponsione, authoritate Regis sive principis praecadente, juctè fuerit definitum & approbatum, England only is ruled by a law not written, and by custom which by usage hath been approved; and it were absurd (because not written) not to call them laws, inasmuch as whatsoever by the counsel and consent of the Peers and commons, and by the king's royal authority shall be determined and allowed, hath the power and virtue of a law. Herein we may observe an authentic description of a parliament, I cannot pass by the word Quicquid, there is some remarkable energy, in the generality of it, that must not go without a Quisquid. Some would have religion and ecclesiastic persons (and do not stick to murmur loudly of it) exempt from all parliament power: All persons & causes subject to Parliament, but our Author (who wrote in the later time of Hen. 2. well nigh 380 years ago, not long after King john had coactedly delivered over his royal Crown into the hands of the Pope's Legate, and thereby admitted papal encroachments of jurisdiction in this kingdom) although with the common errors of those times, he seemed to advance pontisiciall power, in Ecclesiastical causes, here (cui scil. Papae, alioqui invictissimi etiam Imperatores & Reges cesserunt, as it is said in the prologue to Bracton, yet he brings all jurisdictions and matters whatsoever with his Quicquid within the cognizance and power of parliament. A parliament is the supremest Court of Justice in this kingdom, Parliament the supremest court of justice. an assembly of the King, the Lords and peers and the Commons of the Realm; The word Parliament is a French word and signifies originally as much as colloquium, a conference or treaty between the King and his Subjects. I●●is great Court the kings of England have ever had authoritatem praecedentem, as Bracton notes before aswell in regard of their natural persons having supremacy and preeminent, precedency, over and above all persons, as of their politic capacity, and have the sole and only power to call and convene parliaments, and to do all other kingly offices. And they had and ever have potectatem subsequentem, a power to ratify and confirm such acts, and laws, and Statutes whatsoever, as are treated and agreed upon by the peers and commons. The king, as learned Cambden observes, and hath it from Bracton, supremam potestatem & merum imperium apud nos habet, nec in imperii clientela est, nec in vestituram ab alio quovis accipit, nee prater Deum, superiorem agnoscit. In short, the king is supreme over and above all persons and owneth no superior but God. The parliament is called by writs of summons directed to each peer of the land, The calling of the parliament and by writs of summons directed to the Sheriffs of each several county. And it is called by the advice and consent of the king's council: but note, the king of England is armed with divers Counsels. One which is necessarieto be explained, called Commune Concilium, in all writs and proceed, and that is the high Court of parliament. A second, which is grande or magnum concilium, which is sometime applied to the upper house of parliament, sometimes out of parliament to the peers of the realm, Lords of parliament. Thirdly, he hath his legale concilium, his judges of the law for law matters. The Fourth and last, and not the least is the kings privatum concilium, his privy Councillors of State. The king hath, as all the kings of England ever had his sacros and secretos consiliarios, his sacred guard of privy Councillors, Majorum et sapientissimorum è regno: Amongst whom he fitteth in person and moderates their consultations in imitation of the precepts and precedents recorded in holy Scripture, Where no counsel is, the people fall, but in the multitude of counsellors there is safetic, Prov. 11.14. Every purpose is established by counsel, and with good advice make war, Prov. 30.18. Moses had jethro and Aaron, joshua the son of Nun, his successor, Caleb and Eleazar the high priest for his privy counsellors: David had his succession of counsellors, Samuel the prophet, jonathan whose love to him was wonderful, Abiathar the priest, and Nathan also a prophet, with many others. To return to our own nation, king Ine had his Cinredus, whom he calls his father, Hedda and Erkenwald his bishops, with many others, Alfred had his Plegmund Archbishop of Canterbury, Werefridus Bishop of Worcester and others, Athelstane edicted his laws Ex prudenti Vlfhelmae Archiepiscopi aliorumque Episcoporum consilio, by the counsel of his Archb. and other Bishops, and so successively the kings of England ever had as before, their privy counsel, such and so many as the prince shall think good, who do consult daily, or when need is, of the weighty matters of the Realm, to give therein to their prince the best advice they can. The prince doth participate to them all, or so many of them as he shall think fit, such legations, and messages as come from foreign princes, such letters or occurrents as be sent to himself, or his secretaries, every Counsellor hath a particular oath of faith and secrecy administered to him, before he be admitted a privy counsellor. To show the extraordinary regard, and royal use of the king's counsel. The regard ● the Privy counsel. Let us look bacl upon the case of 5. Hen. 4. upon an agreement for an exchange had for the Castle of Barwick, between the king and the Earl of Northumberland, wherein the king promised to deliver the Earl lands and tenements, to the value of that Castle by these words, per avise & assent des estates de son Realm & son Parliament, etc. By the advice and assent of the estates of his Realm (So as the Parliament be before the feast of S. Luke) or otherwise by the assent of his great Counsel, and other estates of his Realm, whom the king shall assemble before the said Feast, in case there be no parliament before, etc. as by the instrument thereof dated at Lichfield 27. Aug. 5. Hen. 4. remaining in the Tower may appear. To this counsel the Oracles of the Common law, the grave and reverend Judges, Leges loquentes Reipublicae (God grant in all Successions they may be so) have had their resort from time to time, in all ages, for advice and directions in their proceed, aswell in criminal causes, as in matters of right and property, as it was observed by the learned Lord Chancellor, I will touch but two which are cited by that honourable Judge in cases of property. Thomas ughtred Knight, brought a Forme-don against a poor man and his wife; They came and yielded to the demandant, which seemed suspicious to the Court, the matter being examined, judgement was stayed, because it was suspicious. And Thorp said, that in like case of Giles Blacket it was spoken of in Parliament: And (faith he) we were commanded that when any like case should come, we should not go to judgement without good advice: wherefore sue to the council, and as they will have ●s to do, we will, and otherwise not in this case. 2. Greene and Thorpe were sent by the Judges to the King's Council, (where there were twenty four Bishops and Earls) to demand their advice, touching the amendment of a writ, upon the Statute of 14. Ed. 3. cap. 6. which was an Act made for amending of Records, defective by misprision of Clerks. By the advice and assent of this Council, is that great and common Council solemnly called. The form of the writ of Summons to the Sheriff, followeth in these words. Rex viz. S. etc. Quia sie avisamento & assensu Concilii nostri, pro quibusdam arduis, & urgentibus negotiis, nos, Statum, & defensionem Regni nostri Angliae, & Ecclesiae Anglicanae concernentibus, quoddam Parliamentum nostrum apud Civitatem nostram: W. etc. teneri ordinavimus, Et ibidem cum praelatis, Magnatibus, et Proceribus dicti Regni nostri colloquium habere, et tractare. Tibi, etc. wherein these things are worthy observation. 1 That this great Court is assembled by the power of the King, expressed in his writ under his great Seal, with Teste meipso. 2 This power is extended with the advice and assent of his Right Honourable privy council. His grace, favour, and providence by calling a Parliament to parley and treat with his Lords spiritual and temporal, as also with his commons, who by their Knights, Citizens, and Burgesses, as their respective proxies, elected by, and with the popular suffrage of the Freemen of every County, City, Town, or Borough, do make up the body of that great court, and do there meet to yield, and consent unto such matters, as shall be there treated and established. 4 The subject of a treaty or parliament: That is, certain difficult, and urgent occasions, concerning his Majesty, his royal state, and the defence of his kingdom and Church. This high court consisteth of two honses, The higher or upper where the King and his Barony, or Nobility spiritual and temporal, do take their place: And the lower house, where the Knights, Citizens, and Burgesses, are assembled for the Commons, consisting, when M. Crompton wrote his jurisdiction of Courts, of 439. persons. The King had the only power to appoint it, his gracious favour is to give life, and beginning to it, by his own personal access, in most Royal state, And as sinis coronal opus, he crowneth and perfecteth all the Acts of this great assembly with his Royal assent, without which no bill can pass, nor law be made. Though there be no written Acts of parliament extant before the reign of Henry the third, yet some have solicitously laboured to draw the Antiquity of this thrice excellent court of Parliament from King Arthur's time to king Ine, Offa, Ethelred, Alfred and others, before the Conquer our, with a successory continuance until this Present age, and collected, and inferred, that the words used by K. Inas in the proem of his laws exhortatione, etc. Omnium Aldermannorum mcor'um, & seniorum sapientum Regni mei. And the like words of Offa, and other kings, in the time of the heptarchy, and that the words of Conventus sapientum, used by King Edward the son of Alfred; the words of Conventus omnium Nobilinm & sapientum, used by King Athelftane; cum consilio sapientum, used by king Edgar, Haec instituerunt Rex & sapientes, mentioned of King Ethelred, and the like of other Kings, should include the Lords and Commons of the parliament; whether this most eminent Court were in those ancient days assembled and exercised in that manner, as now it is, dubium est, dubitare liceat, doubtfulness is a fluctuation of the mind, which in historical matters of indifferency, that concern not our Christian faith and legiance to our Saviour, nor our natural or civil Legiance to our Sovereign, cannot be interdicted to the poorest thoughts; Sure I am this Court is so ancient, and of such transcendent honour and justice, as Blow. com.fo. 399. observeth, that none ought to imagine any dishonourable thought of it; and why? It must be so esteemed ratione persone regis, by reason of the kings sacred person, who is there present and precedent of that great Assembly, as also the laws there made, are established by the general consent, and are obligatory both to king and people. The parliament being called, with the advice and consent of the privy Council, what is the end of their meeting? Sir Thomas Smith in his Common wealth of England, l. 2. c. 2. shall speak for me. The Parliament (the King's Royal assent being had, Power of a parliament. abrogateth old laws and maketh new, giveth order for things past, and things after to be followed, changeth the right and possessions of private men, legitimateth bastards, establisheth forms of religion, giveth form of succession to the Crown, defineth of doubtful rights, whereof no law is already made, appointeth subsidies, tails, taxes, and impositions, giveth most free pardons and absolutions, restoreth in blood and name, with many such preeminences. In this great assembly, no reviling nor nipping words must be used: And if any speak unreverently or seditiously against the Prince or the privy Council, they have not noly been interrupted, but justly sent unto the Tower, by the autho●●tie, of the house: those that be members of that body, must come with a prepared heart to consult together, to give counsel and advertisement what is good and necessary for the common weal, they must come with cheerful resolutions to supply the prince his wants, they must cast off all rancour, spleen, and private malignancy, for locus facer est. I will second it with the words of a great Judge. Co. Inftit. fo. 110. a. The jurisdiction of this Court, maketh, enlargeth, diminisheth, abrogateth, repealeth, and reviveth laws, Statutes, Acts, and Ordinances, concerning matters Ecclesiastical, Capital, Criminal, Common, Civil, Martial, Maritine, and the rest. What cannot a parliament do (as a great peer once told Queen Elizabeth) Royal assent being had? was it not then a heinous and inexcusable crime, for any man entrusted with the laws, publicly to declare, that the late imposition of Ship-money was a prerogative so inherent in the Crown, as that it could not be taken away by Act of parliament? It is most repugnant not only to the works and writings of the ancient heroes of the law, Bracton, Fritton, Fortescue, and others, but also to the opinions of grave and learned modern Writers, and dead and living Judges. But that opinion, and all the proceedings upon the Shipwrits are in this present parliament condemned and disannulled, 17. Car. cap. 14. and the petition of right in every particular confirmed. To add something more; Bellarmine (after many sharp writings and vehement disceptations in defence of merits and works of supererogation) his age hastening his end, now bethinks himself, falls wholly from disputes of merits, to pious meditations, and therein presents unto the world, Tutissimum est iter ad calum per merita Christi; The safest way to heaven, is by the merits of Christ. An honourable peer, as great in the policy of our English state, as ever the other was in the Romish Church, was formerly a great Zealot for the liberties and welfare of the common people, and an earnest prosecutor of the petition of right. Afterwards in the highest of his eminent advancements, relapsing and disaffecting the course of parliaments, whose examination and try all his actions could not well endure, mole tandem ruit sua, is at length hurried down with the weight of his own greatness. And not long before his death ingenuously confessed, That the Parliaments of England were the happiest constitution that any kingdom did ever live under, and under God the best means to make King and people happy. And sowith his dying words (omitting the numerous privileges of that high Court) I conclude this part. THE KING'S Royal office OF PROTECTION. I Shall proceed to the last of my Generals, that is, The Royal office of the King for the protection of his people. I have touched before his personal and politic capacity, and the natural Legiance and Subjection of the people to him, and principally in the right of payment, their deuce and duties, and the great question de modo reddendi. As Legiance is due from the Subject to the King before the Oath be taken, and the Oath is but a visible demonstration of it, So there is a Protection, due from the king to the people, before the oath administered to him at his Coronation, and that oath is but a political expression, of what by the law of God and nature, and the laws of our nation, appertains to his Kingly office. It is observed upon the sift Commandment, Vbi sanciuntnr officia inferiorum erga superiores, And. Rivet in 5. Praec. Decal. ibidem etiam superiorum ergainferiores sanciri, where subjection is jojoyned there protection is employed. As the Subjects must be true and faithful to the King of life, member and terrene honour: So the King must be as true to them in the protecting of all these: and their liberty and proprietiein all these, viz. the liberty of their lives, of their religion, of their persons, and the property and right of their lively hood and estates in their lands and goods, all which may be comprehended under this one word liberty, dulce nomen and res dulcis B●t what is liberty? What liberty is It is a freedom, or free and quiet enjoying of a man his spiritual and temporal estate, his bona animi or animae, and his bona fortunae from rapine, expilation and all unjust encroachments, restrains, confinements, imprisonments and oppressions whatsoever, and that part of our Law which concerns the Subject's liberty is commonly called in the Law books, Lex terrae. Liberty is the only preserveresse of a Christian Common wealth in incolumity and stability, And as one saith, Rebus omnibus humanis Anteponenda pro illiusque incolumitate, & integritate totis viribus, & opibus dimicandum; It is to be preferred before all humane affairs, and the safery and entirement of it to be prop●gned and defended with all manner of strength and power. But liberty must have its modum, & mensuram. It must be with an It a tamen cum justitia, dignitate, praesidio, & reliquis reipulbl●cae ornamentis sit conjuncta, It is and must be joined with justice, Honour, aid, and the rest of the Ornaments of a Commonwealth; That is true liberty which is joined or affianced with uptight reason; And he is a true Freeman which hath such reason for his guide in all his actions. Reason is radius divini luminis, the lustre of a divine illumination; It is the stamp of God's Image in man, it renders man glorious in pre-eminence above, and in Dominion over all other Creatures; In the participation of its faculties, it makes one man more excellent, and eminent than another. Liberty is a word of generality, excensive and appropriative to all Common weal ●hs, Secundum modum, and so to be used and squared according to the general law of N●tions. And it is defined by Bracton thus, Bract. l. 1. c. 6. Num. 2. Est autem libertas naturalis facultas cjus quod cuique facere libet, n●si quod jure aut vi prohibetur, It is a natural faculty of every man to do whatsoever he pleaseth; but what he is prohibited by Law or Arms. Freedom saith Fortescue is graffed in man's Nature by God, whereof if a man be deprived, he is ever desirous to recover the same again, as all other things do that are spoilt of their natural liberty; But more particularly there is a Nationall Liberty which must be regulated by its own peculiar and prescript Laws; Let us instance our own British or English Nation, wherein we enjoy a twofold liberty, the one Evangelicall, or Christian, which is our Religion; the other Civil, or Political, our estates and livelihood: This Liberty is no so free of itself, nor so large in its extent, but that it must be confined under the wardship of the Law. Lex igitur sit custos Libertatis, Law the Guardian of liberty. que summis & insimis aequa reddat & praescribat jura. Nilcontra leges committatur quod impunè fiat, in al●enam dignitatem, fortunas, vitam denique nemo temere invadat. Quod quis habet, illud se habere existimet, Let the Law be the Guardian of Liberty, which may render and administer equal right, both to high and low. Let no man transgress the Law with impunity, nor rashly assail another man's estimation, life nor livelihood; And every man know himself to be owner of what he hath. This last species is a most real property of true liberty, and a great happiness indeed both to KING and People, that the people may know what they have of their own to render to the King for his timely supplies; And the King be assured of their ableness and readiness with the●● uttermost means to support his great and weighty office of Protection. A man may behold the emblem of true liberty in jacobs' Ladder. Angels ascending, and descending, Angels of Legiance and Obedience, ascending to the Throne of Majesty: Angels of Peace, Grace and Protect on, descending from the Sovereign to the Subject. O quam exim●um & drvinum libertas est bonum, quod omne vivens expetit, & sine quo nihil jucundum, nihil suave, nihil ●harum cuiquam esse possit, Ac ne ipsa quidem vita vitalis●●se videatur, pro qua nemo unquam bonus mori dubitavit, Oh what most excellent and divine good is Liberty, which every living creature desires and affects, without which, nothing can be pleasing, nothing comfortable, nothing can be dear to any man; Nay life itself will seem to be no life. And for support of this liberty, what good man would grudge to die. It is the Mother and Nurse of all resplendent virtues, the Mistress of all liberal. Arts, and Sciences, the beauty of Peace, and the Theatre of justice, This makes the King splendently radious at home, and formidable abroad. He that will behold liberty in its true lustre, must cast his eye upon its opposite; A base, asinary servitude and servile subjection. But what sort of servitude I now mean, may be a question. There are divers several sorts of Servitude, Three sorts of Servitude. There is, 1 Servitus creata constituted by the Law of Nations, whereby a man becomes subject to another man's power and dominion, contrary to nature, and is called so a servando, non a serviendo, from their safety, not from their service, For in ancient times Princes were wont to sell their Captives who were subdued by Wars, thereby to save and not slay them. 2. Servitus Nata, which was a bondage or service introduced in this kingdom in all probability from the Law of Nations, and so by Native propagation they were called Nativi and Nativae, and their service grew to be a tenure in Villeinage which was incertain and indeterminate, they were bound to do, whatsoever they were commanded, by their Lord, and did not know over night, what they should do in the morning; yet this servitude was legal, because warranted by the Laws of the Land. They were under the protection of the King, whosoever killed any such person was to undergo the same judgement as if he killed a Freeman. Neither of these are within the Scope of any of my intentions, but a far worse. 1. Servitus lib●ris imposita, or libert as in servitutem redacta, a bondage imposed upon Freemen, or liberty reduced to slavery, which whosoever shall attempt to effect, do as much as in them lie compass the subversion of the laws of Nature, the Laws of God, the fundamental Laws of the Land, the incomparable glory of the King, and the welfare of the people; Liberty saith Bracton is evacuatio servitutis, an emptying out or voiding of servitude, Et contrario modo s●se respiciunt, & ideo simul non morantur; There is such an antipathy between them, that they never abide together. Arbustum geminos non capit Erythacoes. Where such servitude hath its residence, in what Nation soever, there is no justice, no perfect virtue, no Valour, no Arts, no Sciences, no Doctrine, no Discipline, no Law, no property, Ibi homines ipsi (saith one) dimidium animi perdunt, their lives and Conditions are irksome to themselves, unuseful, and unprofitable for any service, and most inglorious to their Prince; of this more in another place. I proceed in the matter of Protection. Master Bracton describes three things which the KING upon at his Oath his Coronation ought to promise to his people under his subjection. 1. Imprimis, se esse praecepturum, & pro viribus opem impensurum ut Ecclesiae Dei & omni populo Christiano vera pax omni suo tempore observetur; He shall command, and to his uttermost endeavour, that true peace may be at all times observed to the Church of God, and all Christian people. 2. Secundo, ut rapacitates, & omnes iniquitates omnibus gradtbus interdicat; That he should by all means straight prohibit, or restrain all extortions, or oppressions, greavances, and all injustice whatsoever. 3. Tertio, ut in omnibus judiciis aequitatem praecipiat & misericordiam, ut indulgeat ci suam misericordiam Deus, & ut per justitiam suam firma gaudeant pace universi; That in all judgements He do prescribe and enjoin the execution of justice (or right and reason) and of Mercy, That our merciful and gracious God may have mercy on him; And that by his justice all men may enjoy a constant Peace. Our late times (as by an old Magna Charta Printed, Anno 1556. appears) have set forth the form of the KINGSO o'th' at His Goronation. Out of which I have selected these branches, concerning the regal Office of Protection. 1. That he shall keep, and maintain the right and the liberties of the holy Church, of old time granted by the righteous Christian Kings of England. 2. That he shall keep the peace of the holy Church and of the Clergy, and of the People with good accord. 3. That he shall do in all his judgements equity, and right justice, with discretion, and mercy. 4. That he shall grant to hold the Laws and Customs of the Realm, and to his power keep them, and affirm them, which the folk and people have made and chosen, and the evil Law ●s, and Customs, wholly to put out. 5. And steadfast, and stable peace, to the people of this Realm, keep and cause to be kept to his power. 6. And that he shall grant no Charter, but where he may do it with his Oath. All these several branches, are but the specifications of that one word Protection; What Protection is. But it will be demanded (what is protection?) It is not only a safeguard and defence of life and member, liberty, lands, and estate of the Subject, but a conservation and maintenance as well of the Religion, as of the Laws established within his Majesty's Realms. And that this blessing of protection may the better flourish over us; The incessant prayers of our Church do daily intercede for Our Gracious Sovereign unto Almighty God, so to dispose and govern his heart, that in all his thoughts, words, and works, he may ever seek the honour and glory of God, and study to preserve his people committed to his charge, in wealth, peace and godliness. This protection is general, from the King to all, and over all his people, and sometimes more specially to some particular persons in some special cases of transmarine businesses, or other services by way of writ. There are a twofold means by which this benefit of safety is diffused, and distributed from the Prince to the people. 1. By Laws. 2. By Arms. Whereupon learned Glanvill Chief justice in the days of Henry 2. in his prologue to his Treatise of the Common Laws of England, thus begins: Regiam potestatem non solum armis contra rebels, & gentes sibi regnoque insurgentes esse decoratam, sed & legibus ad subditos & populos pacificè regendos decet esse ornatam, It doth well become Majesty not only to be well appointed with Arms against Rebels and Invaders of Him and his Kingdom, But to be furnished with Laws, peaceably to order his Subjects and people. And Bracton Chief justice in the time of Henry the third affirms thus, In Rege qui recte regit, necessaria sunt duo haec, Arma viz. & Leges, qu bus utrumque tempus bellorum & pacis recte possit gubernari: He adds further, Si arma defecerint contra hosts, rebels & indomitos, regnum erit indefensum: Si autem Leges, exterminabitur justitia, necerit qui justum faciat judic 'em, If Arms (or Military supply) against enemies be s●a●ted the kingdom will be naked and indefensive, and if Laws be wanting justice will be exiled, and there will be none to give just judgement. Laws and Arms are the props, or pillars of Protection, Laws are of a most excellent preeminence above Arms, If the Law had not been broken there had been no use of Arms. I will therefore first begin with Laws. There was a Law insita naturae, Lawe●● written in the heart of man in and with man's Creation after Gods own Image. By some it is called the Law of Nations and aught to be observed as well amongst jews and Gentiles, as amongst Christians. And in our Common Law it is called Lexrationis, Dr. & stud. ●. ●. cap. 2. which by a natural prompting doth inform us, that all good things are to be pursued and all evil to be eschewed; This Law of Nature through tract of time, and Customs in sin was slurred, defaced, and in a great part worn out, Necessarium igitur fuit quod daretur Liber extrinsecus, continens leges & praecepta per traditionem Dei, etc. And thereupon the Law was given by God upon Mount Sinai to Moses (as is herein formerly handled) which is the positive Law in the Scriptures. The Prophets afterwards by often denouncing of woes, and judgements against the breakers of the Law, did quicken and give life unto it in the people. The sum of all this Law and the duty of it, our blessed Saviour did in one Evangelicall precept render unto all posterity, In all things whatsoever ye would that men should do to you, Matth. 7. 8.1● do ye even so to them, for this is the Law and the Prophets. From the Law of Nature or Reason, and from the divine Law imposed in the Scriptures, all the principal and fundamental Laws of our Kingdom are subderived, and thence by secundary and mediate grounds have their essence and consistence. As the Law of Nature was at first not written in any judicial book; So (you have heard before) that the Laws of England were at first leges non scriptae, and the subjects liberties only known and distinguished by Custom and usage. These not written Laws for the most part of the first two centuries after the Conquest, were much obscured and even subverted, partly by the then overruling arbitrary sway of Sovereignty, sometimes by Papal usurpations, oftimes by the overweening power and tyrannical pressures of the Peers and Great Counsellors of state over the poor disheartened Commons, who for recovery of their wounded, and defaced Laws and liberties, were of● enforced into many outrageous rebellions, and bloody insurrections, in so much as the Government of the Kingdom for a long time, greevously languished of an Antonotnical fever. Begin we with the beginning of the Subjects seeming recovery of their old Laws and liberties. King john before mentioned having been long embroiled by the Civil Wars of the Barons inflamed by the Pope (who to advance his supremacy here soothed up the King in thundering out excommunications against the Barons) about the seventeenth year of his Reign being affrighted with the noy sed strength of his Nobles Army, King john. descended to a meeting and parley with them at a place called Roundesmead between Stanes and Windsor. And upon a pacification of his Nobles and for quieting of his kingdom, He there by his Charter 16. junij Anno regni 17. called Magna Charta, did grant unto his Peers and Commons their long claimed liberties, and not many months after died. Henry third a Child of nine year's age Anno 1216. Henry 3. ascendeth the Throne as heir to the encumbrances of the kingdom as well as to the Crown; The Commons greedy of liberty, and the Nobility of rule, and the humorous spirits of young insinuating favourites opposing and discountenancing the wisdom of the gravest Counsellors, kept the King in an unsteady and unsettled course of Government. In the ninth year of his Reign, Anno 1224, He granted to the Nobility and Commons such Laws and liberties as had been used long time before; And caused Charters to be made, one called Magna Charta, the other Charta forestae, which he sent into every County. The preamble of Magna Charta doth set forth; The two Charters granted 9 Henry 3. That to the honour of Almighty God, the advancement of holy Church, and the amendment of the Realm, The King of his mere and freewill, did give and grant to all Arch-Bishops, Bishops, etc. Earls, Barons, and to all of his Realm the liberties following to be kept within his Kingdom of England for ever, which grant containeth in all 37. Chapters. In the twenty ninth the greatest liberty of the Subject was granted, Nullus liber h● me, etc. viz. No Freeman shall be taken or imprisoned, or be disseised of his freehold or liberties, or free customs, or be outlawed or exiled, or any otherwise destroyed. Nor we will not pass upon him nor condemn him, but by the Law of the Land; we will sell to no man, we will not deny nor defer justice, or right: Here every word is a sentence grande, in grano a weighty matter (as I may term it) in the continent of a grain; Herein is contained that eximium quoddam, our Nationall liberty before cited: And an epitome of so much of lex terra in the generality as concerns the Kingly office of Protection. Grant of a Fifteenth. In the 37. and last ch. The Clergy, Earls, Barons, Knights Free. holder's, and others his Subjects, did give unto the King in respect of both those Charters the fifteenth of all their moveables. And the King did grant unto them on the other part, that neither he nor his heirs should procure or do any thing whereby the liberties of that Charter should be infringed or broken. This grant of Magna Charta, though it carries the form of a mere Charter, ex mero motu & spontane a voluntate (as it was the use at that time and long time after,) yet is it a Paliamentary grant and Statute, and is called the great Charter (though little in itself) in respect of the weighty matter comprised in it in few words. It is the fountain of all the fundament all laws of the Realm, and the only basis and ground cell which supports the superstructure of all the Laws and liberties of the Subjects; And it is but a confirmation or restitution of those not written Laws before mentioned. Would any man think it possible that this Magna Charta could ever be violated by the same hand that made it? The King was young, mild and gracious, but easy of Nature, (a sin not in itself, but by accident,) He was happy in his Uncle the Earl of Pembroke, the guide of his infancy, but unhappy in Hubert de Burgo his justiciary and others. Those liberties redeemed with the price of a fifteenth, the Subjects had not long enjoyed, and little fruit of future freedom more than for the present, like a glimmering sunshine in an unconstant calm, had this common people by this grant; Eftsoons the Clouds return, malum in malum ingruit; The young King having newly attained the Age of twenty one years, by the evil Counsel of his Chief justice Hubert, at a meeting at OXFORD in the twelfth year of his Reign, did by open Proclamation, frustrate and cancel his former Charters made in the ninth year of His Reign, under pretence, that he was under the power or ward of others; So it followed that whosoever would enjoy the liberties before granted, must purchase their Charters under the King's new Seal, at such a price as the justiciar should award. This was greevously taken by the Lords and COMMONS, in so much as the same year the BARONS supplicated the King to restore the Charters which he canceled at Oxford, or else they would recover them by the sword. It was most disloyal in them to be assertores libertatum and to enter into competition with the King with Comminations of the sword. Bracton who wrote long before, left better Counsel behind him in such things as concern the Act of the King, Si ab eo petatur (cum breve non currat contraipsum) if any thing be requirable from him (since he is liable to no action) Locus erit supplicationi, quod factum suum corrigat & emendet, He is to be supplicated that he would reform and amend his doing, which if he do not, Satis ei sufficit ad paenam quod Deum expectet ultorem; It is punishment enough to him to expect the Lords revenge. Observe what followed in this King's time, whilst he gave over the reins of his rule to young unseasoned giddy brains, some of them aliens, and strangers; the gravest Counsellors being discountenanced, the Barons falling into factious ruptures, and the repining Commons into discontented rebellions; The whole Monarchy languished, all things were disordered, and out of frame. Almighty God looking down from Heaven upon the vacillation, and incertitude of this vicegerency under him upon earth, exerciseth his own supremacy, addresseth one of his greatest Messengers of indignation, famine, which raged with that violence, Claus. An. 42. Henry 3. That the King was enforced to direct writs to all the Sheriffs of Shires, ad pauperes mortuos sepeliendos famis inedja deficientes. And it is observed, fames praecessit & secutus est gladius tam terribilis, ut nemo inermis securè possit provincias pervagare; The Civil brandishments of the sword followed every where the fury of the Famine. In this Nationall distress silent leges; Nay, vix legibus tempus aut locus; Scarce was there time or place left for claim of liberties or execution of laws. Sure it is the King and Commons had but little ease, whilst his absolute power was participated (not deligated) to his great ones. To recount the various troubles and turmoils of his long and unsettled reign were the work of a sad and sorry History. Afterwards it pleased God (who hath ever a particular and tender care of Princesper quem reges regnant & Principes dominantur) towards the latter end of his Reign, to restore the King to his right and his tired Subjects to their natural obedience; He had the happiness to call a successful Parliament at Marleborough 18. of Novem. 52. of his Reign, 1267. and therein amongst many notable Laws enacted; He solemnly confirmed the former Charters in all their Articles, and strictly enjoined the observation of them to be inquired before the justices of Eire in their Circuits, and before the Sheriffs in their Counties when need should be; The King seeing his former errors, now began to balance his Government with Praemio & paena reward and reprehension, and himself with an equal hand to hold the scale, He laboureth to reform all that was amiss; The seats of judgement and Counsel he supplied with men learned, and Nobly borne, He sat himself daily in Council and disposed his affairs of most consequence in his own Person, His Counsellors (as one saith) were avessa●●es nor principals; He permitted them ability to advise, not authority to resolve. By this means keeping the lore in his own power (as fittest for Princes to do.) He had a gracious issue of peace, ever after attending the remainder of his Reign, and happily lived to train and adaptate his son and Successor, Edward the first England's justinian for the future swaying of his Royal Sceptre, and afterwards 16. Novem. 1272. died, his son and Successor being then in the holy Land and thirty years of age, who being partner of his Father's experience, shown himself in all his actions after capable to command not the REALM only, but also the whole world. This renowned King returning from the holy Wars, was with Eleanor his Wife crowned at Westminster, 15. Aug. 1272. And afterwards, 15. Aprilis 3. Regni, began his first Parliament at Westminster called West. 1. And therein the King did will and command that the peace of holy Church and of the Land be well kept and maintained in all points, and that common right be done to all as well poor as rich. And cap. 6. doth provide that no City, Burrough or Town, nor any man beamerced without reasonable cause, and according to the quantity of his trespass (that is to say) Every Freeman, saving his , a Merchant saving his Merchandise, a Villaine-saving his gainure, and that by their Peers, and this is but a reflex upon the 29. Article of the Great Charter, No Freeman shall be taken, etc. In October 25. Regni, after many other Parliaments; The King held a Parliament at London, and did then fully grant and renew the great Charter made by his Father in the ninth year of his Reign, and the 37. Chapters therein contained unto the Peers and Commons in haec verba, and likewise the Charter of the Forest under his great Seal. In this Parliament cap. 1. those Charters were confirmed. And the King did well that the same should be sent under his Seal, as well to his justices of the Forest as to others, and to all Sheriffs of Shires, and to all his other Officers. and to all his Cities throughout the Realm, together with his writs, commanding that they cause the foresaid Charters to be published and to declare to his people, that his Highness had confirmed them in all points; And that his justices, Sheriffs, Majors and other Ministers (which under him had the Laws of the Land to guide) should allow the same Charters pleaded before them in judgement in all their points, S. the great Charter (as the Common Law) and the Charter of the Forest for the wealth of the Realm. Cap. 2. All judgements given against the points of the Charters should be undone and holden for nought. Cap 3. It was enacted, that the same Charters should be sent into every County under the King, Seal there to remain and should be read before the people two times by the year. Ca 4. The sentence of examination was to be denounced twice a year against the breakers of those Charters. Cap. 5. It was enacted, That whereas the aids and tasks given to the King before time towards his Wart●s and other business of the Subjects own grant and good will (howsoever they were made) might turn to a bondage to them and their heirs, because they might be another time found in the Rolls, and likewise for the prices taken throughout the Realm, by his Ministers; That such aid, tasks, or prices, should not be drawn into a Custom for any thing, that had been done before, be it by Roll or any other precedent whatsoever that might be found. Cap. 6. That from thence forth no such manner of aids, tasks nor prices should be taken by the King, but by the common assent of the Realm and for the common profit thereof. Ca 7. The Commons being grieved with the Maletent of wools, S. a toll of 40. s. for every sack of Wool, upon their petition, the King released it. And did grant for him and his heirs, that no such things should be taken without their common assent and good will. The whole Subject of this Parliament is styled, Mag. Char. Printed 1540 Confirmatio chartarum de libertatibus Anglia & forrestae. And follows the great sentene e of excommunication called sententia lata super Chartas, denounced by Robert Kilwarby Archbishop of Canterbury and the Clergy against the violators of those Charters. I find next ensuing this sentence in that book of 1540 the Statute, de tallagio non concedendo, that no tallage or aid should be laid or levied by the King or his Heirs without the good will and assent of the Arch-Bishops, Bishops, Earls, Barons, Knights, Burgesses, and other Freemen of the Communality of the Realm. Cap. 2. Nothing should be purveyed to the King's use without the owner's consent. Cap. 3. Nothing from thence forth should be taken of sacks of Wool by colour or occasion of Maletent. Cap. 4. All Laws, liberties and Customs were again confirmed; and the curse of the Church to be pronounced against the breakers of this Charter. This Statute hath no certain time prefixed of its making; But afterwards at a Parliament held at Westminster, in Lent, 28. Edw. 1. certain Statutes were made called Articulisuper Chartas, whereby the two Charters were more strictly confirmed and enjoined to be read four times in the year, by the Sheriff before the people in full County, and those are but explanations upon Mag. Charta. The second Chapter being large and wholly made for the relief of the Subjects against the King's Purveyors and Ministers for taking their goods and victuals against their wills at what price they pleased, and sometimes without any price. The third concerning the Marshal's jurisdiction of the King's House, and other good ●n●uing Laws, and S●atures, which are but Comments or Paraphiases upon that Article of Nullus liber homo, etc. and do provide penalties in certain where none were before. I will wade no further into the numerous confirmations of Magna Charta. It hath been ratified since 9 of Henry third, above thirty rhymes, I may be bold to say it is the Grammar of the fundamental Laws of the Land; By which all other Laws are to be construed. It is the lydius lapis of the Law, It is the size and Standard by which all our Nationall Laws must be assayed and tried. Those are the Laws which the Kings of England at their Coronations have sworn to maintain, and to execute justice to the people according to the Laws, and thereby to protect their subjects. No Acts of Parliament are so wisely contrived and interwoven with reason, and judgement, but some sons of belial will arte vel ingenio strive and compass to elude and subvert them. At the Parliament in the third year of his now blessed Majesties Reign an humble remonstrance was presented by the Peers and Commons unto his Majesty in their petition of right, concerning divers rights and liberties of the Subjects before mentioned, which had been entrenched upon touching their lives, persons and estates. Whereupon his Majesty did fully, freely, and graciously confirm in all points their said petition of ●gnt with Soit Droit fait, come est desire. And I da●e boldly say, His Royal goodness hath been of himself most vigilantly careful and tender to observe it. It is said before that the Law is the Guardian of liberty. The Law must be under wardship too; Who be the Law Wardens who then be the Law-Wardens? The King originally is entrusted under God with the custody of the Laws, under him the learned and Reverend judges are interessed in the Curator-ship of the Laws, and in them of the lives, liberties, and estates, of the whole kingdom, And at their first investiture into their places they take a solemn oath incident to their great offices; By that oath they engage themselves as feoffees in trust to Minister true right, between King and people, and to execute justice to the people according to the Laws of the Land, and thereby, and by receiving the weighty trust from and under him, for the custody of that inestimable jewel the Laws, they are to acquit the King of so much of his oath. I cannot here forget some old verses. — Realms have rules, and Rulers have a size, Which if they keep not, doubtless say I dare That either's griefs, the other shall agrize, Till the one be lost, the other brought to care. I will not Comment upon them, they were written upon a Subject of 240. years a gone, and a bad sample thereof hath happened in our times. Laws are the size of rule and government. By which the opinions and judgements of our twelve justitiars must be weighed and guided, they are the Subjects birthright and inheritance; They are the golden ring by which the King at his Coronation is politically espoused to the Commonweal, and have been enamelled with the blood of many Millions, and Myriad of souls. Woe be therefore unto them, that have been, are, or shall be the violaters and betrayers of that sacred trust. What must they be that will render themselves guilty of so heinous a crime? Surely none of jethro his Counsellors, Not men of courage, nor fearing God, nor loving Truth, nor hating Covetousness; They must be in their conditions Tyrants, haters of Law, for having once broken the lore of Law they fear to be tried by the plumbline of the Law: And then follows, Quod timent, oderunt, quod oderunt destrui & irritum omniò esse volunt, what they fear, they hate, and what they hate, they would utterly destroy. Oderunt impij omnia Disciplina vincula & legem ●yrannum esse judicant, Moller in Psa. 139. The wicked hate all bonds of Discipline, and condemn the Law to be a Tyrant; But their guerdon is, Qui peccant contra legem, lege plectentur; Offenders or Subverters of the Law shall have their demerited punishment by the Law. It is said of sacrilegious Church-robbers, Frustra petunt auxi lium Ecclesiae, etc. They are excluded all benefit of Clergy that sin against the Church. The Law is the Temple or Sanctuary whether the Subject is to run for shelter and refuge. M. Saint Ioh●s speech fol. 4●. If the Wardens of this Temple desert their Office, and abjure the Sanctuary, Let them expect nor fuge thither, nor, other but the Law to be testem, jud cem, & Satellitem, their witness, their judge, their executioner. And their I leave them. So much for Law. THe other prop or Pillar of Protection is Arms, Arms. whereof I have sufficiently spoken before, for so much as concern the Subjects duty and legiance. And for that which concerns his Majesty; It is so generally known, That I shall need to give but a touch. By the Common-Law of the Kingdom, No man was chargeable to arm himself, otherwise than he was wont in the time of the King's progenitors (S. Edw. 1.) And no man was compellable to go out of the Shire, but where necessity required, and sudden coming of strange enemies into the Realm; And than it should be done as had been used in times passed for defence of the Realm. Likewise the preparing men of Arms, and conveying them unto the King into foreign parts, was merely to be at the King's charge. And howsoever in the time of Edw. 1. certain Commissioners did encroach upon the Commons, and compelled the shires to pay wages to the Preparers, Conveyers, and Soldiers, whereby the Commons had been at great charge and much impoverished. The King did will, that it should be so done no more. Stat. 1. Edw. 3. cap. 5.7.1327. And 18. Edw. 3. Cap 7. It is provided, That men of Arms, Halberds, and Archers, chosen to go in the King's Service out of England, shall be at the King's wages, from the day that they depart out of the County where they were chosen, till they return. Those Statutes are but affirmations or the Common Law and are utterly destructive to the late impositions of Coat and Conduct money, and such like levies in that kind, as are not warranted by common assent in Parliament. By both these (S.) Laws and Arms the peace and unity of those two dear sisters, the Church and Common weal, are strengthened and upheld; And in both these the Prince hath power of direction to make and establish laws, to raise and levy Wars, and power to command the execution and expedition of them; Neither of these are acted without Counsel, frustra leges, frustra sunt arma nisi sit consilium; And it is a true rule, Sanissimum consilium non fine concilio, the best Counsel is from a Council or Assembly of Counsellors. And therefore the King as you heard before is attended with his Privy Council, which is a body politic, unum è pluribus const tutum, and no body without a head, for as Forrescue, fol. 30. saith, Quandocunque ex pluribus co●st tuitur unum, inter illa unum erit regens, & alia erunt recta. This body politic whereof the King is head (the autiquity and use whereof I have sufficiently before remonstrated) is at ended with two great Nuntioes, Angelis è Caelo, justice and Mercy. They are ornamenta coronae, The precious Diadems of the King's Crown, they are columnae Majestatis, the two main supper●ers of regal dignity; By the one, S. His justice, he hath potestatem praeveniendi, and subveniendi, a power, by making of Laws sending forth his Edicts, and Proclamations of preventing all capital and criminal offences, all homicides, rapines, oppressions, injuries, rebellions, mutinies, and all greevances whatsoever, either of force, or frand, and either against the person or estare of His Majesty's Subjects; And if prevention be not available (●●in natural, so in Civil diseases it sometimes fails) Then must his power of subveniendi be administered, and that by 〈…〉 execution of his Laws, which is twofold. 1. By Castigation, correction, or correption of the Malefactor, either by privation of life, conf●●●●ion of goods, mulcts, and penalties, and by 〈◊〉 of liberty and other corporal infliction. Secondly, by relieving and comforting the offended and greeved Subject, with restitution, or retaliation according to the nature, and quality of the respective causes. And this cannot be performed wholly by himself in his own person, but by a subdelegation of judges, Magistrates, and Ministers; And them also (if he find in any of them any perverse, or corrupt aberration from the rules of justice.) He hath power and will to reprehend, and chastise, or else, who could challenge any freedom of Protection; For if the King and His Council should (as some conceive) by that forecited clause of Nullus l●ber homo, etc. be abridged from hearing and examining complaints, either in causes of extraordinary consequence, or against persons of greatest eminence (I mean not every cause that may be regulated by ordinary jurisdiction.) Then bootless is that royal promise in the great Charter, Nulli negabimus aut differemus justitiam, etc. Then must he needs violate his solemn oath and vow at his Coronation, faciam fieri justitiam, etc. His ears must be therefore open to the cry of the poor, the fatherless and oppressed, or else he declineth the true properties of his Vicegerency under God, who is refugium pauperi, Psalm. 99 The LORD will be a defence for the oppressed, even a refuge in the due time of trouble. This Princely office of Protection is lively described in the 72. Psalm made upon Solomon, Give thy judgement O God unto the King, and thy righteousness unto the King's son, verse 2. Then shall he judge the people according to right, and defend the poor, verse 4. He shall keep the simple folk by their right, defend the Children of the poor, and punish the wrong doer. Here is his justice of Consolation to the oppressed, His justice of Castigation to the oppressor. To that heavenly Poem of the Psalmist some allusion hath been by an earthly Poet, Protegit insontes, castigat jure nocentes, Defendit totum sub ditione gregem. So much of his justice. BY the other prop or pillar of his Imperial Crown (S. his mercy) the King hath, 1. Potestatem remittendi. 2. Potestatem dispensandi. 1. A power of remission, or pardon. 2. A power of dispensation: and both in imitation of the sacred deity of Heaven, whose immediate Minister and Lieutenant the King is upon earth within his own dominions. In the old Law Moses by God's direction did appoint unto the Children of Israel Cities of refuge, as so many Sanctuaries of Mercy, whether the ignorant man slayer who hated not his neighbour in times past, as also the casual homicide might flee and live: But if a man hated his neighbour, laid wait for him, rose up against him, and smote him that he died and fled unto any of those Cities, Then the Elders (or Magistrates) of the Cutie should send and fetch him thence, that he might die by the hand of the avenger, Deut. ca 19 ver. 3, 4, 5, 11, 12. In this Island were heretofore Sanctuaries, places of refuge for such offenders to whom the Law intended Mercy, and these were in use many hundred years, but in this last Century they were abridged by the Statute of 1. jacobi 25. So much of all Statutes, as concern Sanctuaries, or ordering or governing of Persons in Sanctuary, were repealed, and made utterly void. Besides the refuge of Sanctuaries, The mercy of the Law in many cases, as homicide in heat of blood without prepensed malice, theft, and such like, did afford the benefit of Clergy; And it doth at this time in a form different from former times; For now, in stead of delivering the Malefactor over to the Ordinary to purge himself, he is admirted to read before the secular judge. And if the Ordinary, or his Deputy pronounce legit ut Clericus; Then is he to be discharged with a stigmatical brand in his hand, as a warning to come there no more, and he forfei●th his goods only. If non legit were pronounced; Then is the offen●●● to suffer death for his transgression. But this kind of Mercy is not absolute but conditional. The most perfect mercy, as from God, so next under him from the King is Pardon, which is a French word signifying as much as pax, venia, or gratia, and is used in the Common-Law for the remitting or forgiving, of a f●lorious crime or other offence. And it is twofold. 1. Ex gratia Regis, of the Kings myere grace and Clemency. 2. Per cursum Legis, by the course of Laws, that is, according to the ancient Laws and Customs of the kingdom. Pardon of grace, is again threefold. 1. Parliamentary, which is called free, and general, granted upon the happy close and solution of a successful meeting of the three States; The common good and benefit whereof is well and sensibly known to all His Majusties loving, and obedient Subjects: and this kind of pardon is pleadable at all times. 2. Upon the KING'S Coronation, or other grand and extraordinary solemnity. But whosoever will reap the fruit hereof, must at some charge, within one year and a day, sueit forth under the King's great Seal; Or else he is utterly debarred of it. These two sorts of pardons are ex generali gratia, to all that are not excepted therein, and will take hold of the benefit thereof. 3. A pardon ex speciali gratia is that which the King in some special regard of the person, his merits and future hopes of good service, or other Circumstances, or in consideration upon some intelligence of the fact, or manner of the conviction, by any corrupt, malicious, or illegal proceed, doth extend and afford upon his absolute Prerogative and power; And it is so far from violation that it well stands, with the observation of his oath. 2. Pardon by course of Law, is that which the Law in equity vouchsafeth for a light offence, as homicide casual. His power of dispensation, is a temporary qualification of the rigour of particular laws, emollit, non tollit legem, as one saith, It doth mollify, not nullify a Law; And as the Civil Law hath it, Ille qui dispensat, non tollit legem, sed ex causa, in certapersona, vel ad tempus remittit; Et dispensatio quandoque est necessaria, Panorunt. super decret, capit, proposuit, He that doth dispense with a Law, doth not abrogate the Law, but for some certain cause, in respect of persons, or times doth remit the rigour; And dispenlation sometimes is very necessary. Positive Laws are but leges temporis, if so; Then are they dispensable, according to the necessity of times, or occasions. The rigid Pharisees taxing the Disciples of Christ, for that being an hungered, they did upon the Sabbath Day begin to pluck the ears of Corn and to eat, Our Saviour puts them two cases by way of question, Have you not read that David being hungry, entered into the House of God and did eat the shewbread, which was not lawful for him, nor any with him, but only the Priests? Or have you not read in the Law, how on the Sabbath day the Priests in the Temple break the Sabbath (Sabbatum violant & sine crimine sunt) and are blamelesso? And then he doth absolutely convict them of ignorance, If ye knew what this is, I will have mercy and not sacrifice, ye would not have condemned the innocents', Matth. 12. ver. 1. Vsque 8. If the Law of God by the mouth and judgement of his blessed Son was dispensable; No man can deny, but humane laws which are transitory may admit a qualification; Or else our Gracious Solomon cannot according to the third branch of his oath, do equity and right justice, with discretion and mercy; Observe the rule of the Common Law in this point, Dispensatio mali prohibiti est de jure Domine Regi concessa, propter impossibilitatem praevidendi de omnibus particularibus. Et dispensatio est mali prohibiti provida relaxatio, utilitate, seu necessitate pensata, Co. 11.88. No greater argument of supreme, and uncontrollable Majesty than a dispensatory power, for when the Common Council of the Kingdom, have enacted penal Laws, for prohibiting somethings to be done, which are evil, per accidens; The KING by his own Princely power alone, may either in regard of persons or times, or other necessary conting encies dispense therewith. PROTECTION, as it is grande opus so it hath grave onus, a great Balk, a l●rgel arthen. The o●-stretched and puissant Aims of this Protection. 1. By Laws. 2. By Arms, Are not supported and maintained without inexpressibie charge. In the first (S.) Laws, observe in the maintenance and execution thereof; the ●●●ries, and wages of the great and reverend judges, the fees, stipends, and allowances, of other Ministers, and Officers of justice, his Majesty's extraordinary great experce in sending abroad and dispersing his Edicts and Proclamations, in all the quarters and corners of the kingdom. In the second (S.) Arms, observe no less, if not far more, in the reparations, and constant maintenance, and supply of His Royal Navy, of His Ordinance, Artillery, and all other munition, And his assiduous preparation in the time of Perce, against the occasion or expectation of Wars; And all must be (according to the Prayers of our own Church) to maintain the People in wealth, peace and godliness. But that we may return with the greater thankfulness to GOD, Let us look back, and there are not many quarters of years since this great work of Protection was invaded, the union of two Ancient Kingdoms disturbed, The Subject, with jealousies distracted, the former Valour of our English hearts blounted and amated, our Liberties in a desperate jeopardy of bondage; And which is worst, — Quis talia fando, Myrmidonum, Dolopumve, aut duri miles Vlyssis, Virg, 〈◊〉. l. 3. Temperet a lachrimis?— What flinty heart can forbear from tears? A sweet, mild, merciful, KING in his studious vigilancy for quenching of these flames, most sensibly perplexed; and indeed brought into a great strait, that he had just cause to invocate the Mercy Seat of Heaven in the language of the Kingly Prophet Angustia est mihi valde, I am in a great strait, 2 Sam. 24. v. 14. He was so indeed, and like jonathan and his Armour-bearer between two sharp rocks, Bozez and Sench, the forefront of the one was situate Northward, the other , 1 Sam. 14. v. 45. What was the cause of all these miserable tumults, and turmoils? Truly our blessed Sovereign unhappily fell upon those times, wherein David complains of the judges, Magistrates and Ministers under his subjection, Psal. 82. v. 1. etc. God standeth in the congregation of Princes: He is a judge amongst Gods, ver. 2. How long will ye give wrong judgement: and accept the persons of the ungedly? David by mentioning God's pretence in the aomen ill ration of judgements, endeavouring to 〈◊〉 be a tenor in their hearts adds that sharp increpation v. 2. ●sque quo judic at is iniquit●em, & c. ●o give 〈◊〉 judgement is in pronouncing of Law, not to observe an equality or rule prescribed by the laws, but to give sentence pro arbitrio suo, after their own will, fancy, and passion, for no other cause but so they would have it, whence that vox tyrannica that proverb sprung up Sic volo sic jubeo, stat pro ratione voluntas, Our will is our reason, and our will ●hall command. After this severe objurgation the Prophet declareth the true use and end of upright judgement; Defend the poor and fatherless: See that such as be in need and necessity have right, v. 3. Deliver the outcast and pcore: save them from the hand of the ungodly, v. 4. And then despairing of their reformation, he doth amplify his reprehen zions against them, They will not be learned, nor understand, but walk on still in darkness. All the foundations of the earth are out of course, ver. 5. It was so in David's kingdom, and no less in King Charles His Great Britain, David invocated God for redress, Exurge Deus & judica terram, Arise O Lord and judge thou the earth, v. 8. And so did King Charles, God heard the prayers, and humble supplications both of King and People. For in ictu oculi, when all conditions of this State in the out ward survey of humane judgement were most desperate and deplorable, Moventur omnia fundamenta terrae, Psalm 74.22. God did arise and (plead or) maintain his own cause, Our gracious josuah by the dictates of the holy Spirit did summon his Elders, called his common-council or Great Congregation together, ●ove. 1640. to treat of the difficult and urgent affairs concerning his Majesty, the State and defence of his Kingdom and the Church of England. The like in his Realms of Scotland, and Ireland. They have all happily and religiously met in their several orbs, the Civil and unnatural breaches of the two disjointed kingdoms are unanimously pacified, and both more firmly reunited than ever before. The issues and fruits of the Counsels and consultations of our Parliament have far sarpassed the precedents of all former ages. Let the Acts, Ordinances and proceed themselves be judges. And pray we incessantly to the throne of Heaven, that God will be still present and precedent in the maturating of all their debates and deliberations concerning Church and State. And in all such times when King, Church and people are in a straight, That God would arise, exurgat Deus & dissipentur inimici. Amen, Amen, Amen. FINIS.